City Council Meeting Agenda Packets 11-1-20221
CITY OF HUNTSVILLE, TEXAS
Andy Brauninger, Mayor Bert Lyle, Position 1 At-Large
Dee Howard Mullins, Position 2 At-Large
Vicki McKenzie, Position 3 At-Large
Pat Graham, Position 4 At-Large
Daiquiri Beebe, Ward 1
Mayor Pro Tem Russell Humphrey, Ward 2
Deloris Massey, Ward 3
Jon Strong, Ward 4
HUNTSVILLE CITY COUNCIL AGENDA
TUESDAY, NOVEMBER 1, 2022
REGULAR SESSION 6:00 P.M. - City Council Chambers
Huntsville City Hall, 1212 Avenue M, Huntsville, Texas, 77340
Persons with disabilities who plan to attend this meeting and may need auxiliary aids or services are requested to
contact the City Secretary’s office (936.291.5413) two working days prior to the meeting for appropriate
arrangements.
MAIN SESSION (6:00 p.m.)
CALL TO ORDER
INVOCATION AND PLEDGES - U.S. Flag and Texas Flag: Honor the Texas Flag. I pledge allegiance to
thee, Texas, one state, under God, one, and indivisible.
PUBLIC HEARING
a. Conduct a public hearing for a proposed Development District Map amendment request to change the
district from Neighborhood Conservation (NC) to Management (M).
Armon Irones, City Planner
1. CONSENT AGENDA
The presiding officer will call for public comments before action is taken on these items. (Approval of
Consent Agenda authorizes the City Manager to implement each item in accordance with staff
recommendations. An item may be removed from the Consent Agenda and added to the Statutory Agenda
for full discussion by request of a member of Council.)
a. Consider Authorizing the City Manager to award the purchase of Solid Waste Residential Collection
Containers (Carts).
Brent Sherrod, Public Works Director
b. Consider a proposal for Additional Engineering Services Including Design, Construction management
and Inspection for IH 45 Segment 2B Utility Relocations
Kathlie Jeng-Bulloch, City Engineer
c. Consider authorizing the Mayor to abandon and release Water Line Easements situated on property of
Elion Management, LLC, located at 500 State Highway 19.
Kathlie Jeng-Bulloch, City Engineer
d. Consider authorizing the City Manager to enter into an agreement with Tyler Technologies for their
time & attendance software ("Executime") and timeclocks.
Steve Ritter, Finance Director
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e. Second Reading - Consider the adoption of ordinance 2022-30 amending the Development Code of
the City of Huntsville, Texas Article 12 “Development Review and Approval Procedure” and Article
13 "Administration".
Kevin Byal, Director of Development Services
f. Second Reading - Consider the adoption of ordinance 2022-31 amending the Huntsville Code of
Ordinances, Chapter 12 “BUILDING AND BUILDING REGULATIONS”.
Kevin Byal, Director of Development Services
2. STATUTORY AGENDA
a. Consider authorizing the City Manager and staff to move forward with additional City Hall project
financing via issuing the remaining $4,000,000 of the 2016 Proposition 2 approved bonds and
approving Ordinance 2022-35 to amend the FY 2022 - 23 annual budget and the CIP budget.
Steve Ritter, Finance Director
b. Consider Resolution No. 2022-29 to approve the retention of the law firms Mckool Smith, P.C.,
Ashcroft Sutton Reyes, LLC and Korein Tillery LLC to represent the City in litigation against Netflix,
Inc., Hulu LLC, Disney DTC LLC and other video service providers.
Leonard Schneider, City Attorney
c. First Reading - Consider Ordinance No. 2022-36 Amending Ordinances; (1) Ord Of 6-9-1970; (2)
Ordinance No. 80-20; and (3) Ordinance No. 95-24, That Established The Library Board for the City of
Huntsville requiring the publication of this Ordinance; providing for a severability clause; repealing
Ordinances in conflict with this Ordinance; providing for a penalty; making other provisions and
findings thereto; and declaring an effective date.
Leonard Schneider, City Attorney
3. CITY COUNCIL/MAYOR/CITY MANAGER
a. Consider the appointments to the City of Huntsville Boards and Commissions for expired terms or
vacant board positions.
Andy Brauninger, Mayor
4. MEDIA INQUIRIES RELATED TO MATTERS ON THE AGENDA
5. ITEMS OF COMMUNITY INTEREST
6. EXECUTIVE SESSION
a. City Council will convene in closed session as authorized by Texas Government Code, Chapter 551,
Section 551.071 to receive legal advice on Cybersecurity Incident.
Leonard Schneider, City Attorney
b. City Council will convene in closed session as authorized by Texas Government Code, Chapter 551,
Section 551.071 to receive legal advice on Library Policies and Employee Handbook for the City of
Huntsville.
Leonard Schneider, City Attorney
7. RECONVENE
Take action on item discussed in executive session, if needed.
ADJOURNMENT
*If during the course of the meeting and discussion of any items covered by this notice, City Council
determines that a Closed or Executive session of the Council is required, then such closed meeting will be held
as authorized by Texas Government Code, Chapter 551, Section 551.071 – consultation with counsel on legal
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matters; 551.072 – deliberation regarding purchase, exchange, lease or value of real property; 551.073 –
deliberation regarding a prospective gift; 551.074 – personnel matters regarding the appointment, employment,
evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee; 551.076 –
implementation of security personnel or devices; 551.087 – deliberation regarding economic development
negotiation; Sec. 551.089 - deliberation regarding security devices or security audits; and/or other matters as
authorized under the Texas Government Code. If a Closed or Executive session is held in accordance with the
Texas Government Code as set out above, the City Council will reconvene in Open Session to take action, if
necessary, on the items addressed during Executive Session.
CERTIFICATE
I, Kristy Doll, City Secretary, do hereby certify that the above notice was posted on the City Hall bulletin board,
a place convenient and readily accessible to the general public at all times, and to the City’s website,
www.HuntsvilleTX.gov, in compliance with Chapter 551, Texas Government Code.
DATE OF POSTING: 10/28/2022 Kristy Doll
TIME OF POSTING: 11:30 a.m. Kristy Doll, City Secretary
TAKEN DOWN:
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CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: a.
Agenda Item: Conduct a public hearing for a proposed Development District Map amendment request
to change the district from Neighborhood Conservation (NC) to Management (M).
Initiating Department/Presenter: Development Services
Presenter:
Armon Irones, City Planner
Recommended Motion: Public hearing only, no action to be taken
Strategic Initiative: Goal #3, Economic Development – Promote and enhance a strong and diverse
economy.
Discussion: Staff has received an application requesting reclassification of the Development District on
the property. The request is to change the property from Neighborhood Conservation (NC) to
Management (M). The subject property is comprised of 32.0675 acres, located adjacent to Sections 1
and 3 on the east side of Elkins Lake Subdivision near the intersection of Wellington Drive and Green
Briar Drive. The subject property is currently undeveloped and is being proposed for the development of
a mixed single-family detached homes and townhome subdivision. The Neighborhood Conservation
district designation only provides for single family detached and does not allow for townhomes in
accordance with the Development Code. Since the property owner desires to build townhomes, the only
option is to request a Development District reclassification. The proposed development will have 34
single family detached home lots and 30 townhouse lots.
The change in development district classification requires the adoption of an ordinance. The ordinance
to consider for this item will be presented at the next Council meeting and no action other than
conducting the public hearing will occur at this meeting.
Previous Council Action: None
Financial Implications: Once the property is developed, the city will receive advolorum taxes
Approvals:
Kevin Byal
Aron Kulhavy
Kristy Doll
Associated Information:
1. Vicinity Map -Woods at Elkins Lake
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2. Updated Prelim Plan
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Subject Property
CITY OF HUNTSVILLE, TXENGINEERING DEPARTMENT / GIS DIVISION
8 CREATED DATE: 9/19/2022
Vicinity MapHuntsville GIS Division
1 in = 500 ft
0 0.1 0.20.05 mi
On 8.5 x 11 inch Print
On Any Print Size
Service Layer Credits: City of Huntsville GIS Division
The City of Huntsville, Texas or its employees gives NO warranty, expressed or implied, as to the accuracy, reliability, or completeness of these data. See full GIS Data Disclaimer at: www.huntsvilletx.gov/gis
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CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.a.
Agenda Item: Consider Authorizing the City Manager to award the purchase of Solid Waste Residential
Collection Containers (Carts).
Initiating Department/Presenter: Public Works
Presenter:
Brent Sherrod, Public Works Director
Recommended Motion: Move to authorize the City Manager to approve the OMNIA Contract # RFP-
00254 pricing for the purchase of 972 Solid Waste Residential Collection Containers (Carts), to include
freight, from Rehrig Pacific Company in the amount of $66,924.00
Strategic Initiative: Goal #5, Resource Development - Enhance the quality of life for citizens, businesses
and visitors by leveraging the human and fiscal resources available to the community.
Discussion: The City of Huntsville Solid Waste Department provides residential curbside service to the
citizens of Huntsville for the removal of garbage and recyclables. This service is provided twice a week,
once for curbside garbage removal and once for single stream recycling removal. These collection
containers are 95 gallons, green and blue in color, and are provided for the citizens of Huntsville to use.
Due to the increase in new housing additions located throughout the city, the Solid Waste Division
needs additional carts both for garbage and recycling. This purchase will increase the residential
container inventory to help fill the void being created by the increase in customers. The additional
containers being requested for purchase for this FY include 550 green residential garbage carts and 422
blue residential recycling carts.
A residential 95-gallon cart will cost $67.00 each plus freight. The total cost for the purchase of 972
carts, to include freight, will be approximately $66,924.00.
Previous Council Action: This is a yearly purchase and the last council action was on October 5, 2021.
Financial Implications: Item is budgeted: 224-375-52220/ 224-377-52220 In the amount
of: $49,665/$31,170
The item is estimated to generate additional revenue: $25.76 per residential garbage cart per month.
Approvals:
Brent Sherrod
Leonard Schneider
Aron Kulhavy
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Kristy Doll
Associated Information:
1. Solid Waste Refuse Carts
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CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.b.
Agenda Item: Consider a proposal for Additional Engineering Services Including Design, Construction
management and Inspection for IH 45 Segment 2B Utility Relocations
Initiating Department/Presenter: Engineering
Presenter:
Kathlie Jeng-Bulloch, City Engineer
Recommended Motion: To authorize the City Manager to approve the Additional Professional
Engineering Services in the amount of $297,280.00 to RPS Engineering for IH-45 Segment 2B Widening
and Utility Relocation with Betterment Project (Water Fund 701, Wastewater Fund 702) – Project 21-10-
03.
Strategic Initiative: Goal #4, Infrastructure - Ensure the quality of the City utilities, transportation and
physical structures so that the City’s core services can be provided in an effective and efficient manner.
Discussion: The City has several waterline and sanitary sewer line segments within the TxDOT right-of-
way in the IH-45 Segment 2B widening project limit that needed to be relocated to remove potential
conflicts with highway construction and to provide necessary clearances to the new roadway surface.
The City’s utility relocation design consists of upsizing waterlines and sanitary sewer lines in several
locations. The upsizing is necessary to accommodate anticipated future growth.
The cost of utility relocation design and construction for all relocations with similar sizes and types to
the existing ones is 100% reimbursable from TxDOT to the City. Upsizing water and sewer lines of the
City’s choice to accommodate future growth will be considered as “Elective Betterment” by TxDOT, and
the increased cost for such upsizing should be met by the City.
The additional Service in the amount of $297,280.00 including Design, Construction Management and
Inspection Service due to the revised plans and survey information from Jacobs, TxDOT's design team.
All fees included in this proposal are fully reimbursable through TxDOT and will be included in the utility
agreement executed prior to construction. The fees for each phase of the project are outlined below:
Task Fee Amount
Project management and Coordination $ 24,000.00
Final Design $ 56,080.00
Construction Management $ 84,400.00
Inspection $ 122,800.00
Reimbursable $ 10,000.00
Total $ 297,280.00
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Previous Council Action: The City Council approved the Engineering agreement with RPS Infrastructure,
Inc. at the December 1, 2020, meeting.
Financial Implications:
Item is budgeted: In the amount of: $686,000.00
Approvals:
Kathlie Jeng-Bulloch
Kristy Doll
Aron Kulhavy
Associated Information:
1. Proposal
2. Overall 1_8.5x11_BW
3. Overall 2_8.5x11_BW (4)
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!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.1,25001,250625FeetConflict #12STA 1935+2014" Force Main LateralCrossing Relocation Conflict #7STA 1941+0012" Water Line(LongitudinalRelocation)Conflict #6STA 1936+908” Water Line Connectionto 12” Water LineConflict #21STA 1978+008” Wastewater CrossingRelocation (SH 75)Conflict #18STA 1971+0012” Water Line LateralCrossing RelocationConflict #19 STA 1971+008” Wastewater LateralCrossing RelocationConflict #22STA 1978+0012” Water LineLateral RelocationConflict #20STA 1978+008” Wastewater LateralCrossing RelocationConflict #23STA 1996+806" Force MainLateral RelocationConflict #24STA 1997+0012" Water LineLateral RelocationRPS PROJ. NO.:DATE: OCTOBER 2020EXHIBIT1SCALE:Overall Utility Relocation LayoutIH-45 Segment 2BUtility Relocations1 " = 1,250 'Conflict #1STA 1893+0012" Water Line(Longitudinal Relocation)Conflict #2STA 1921+6012" Water Line(Longitidinal Relocation)Conflict #4STA 1924+9014" Force Main CrossingRelocationConflict #3STA 1924+8012” Sanitary CrossingRelocation Conflict #5STA 1933+00 - 1938+00 12” Water Line(Longitudinal Relocation)Conflict #9STA 1943+006" Water LineCrossing RelocationConflict #10STA 1943+0012" Water LineCrossing RelocationConflict #8STA 1943+006" Force Main CrossingRelocationConflict #11STA 1946+5018” Wastewater LateralCrossing Relocation Conflict #16STA 1977+00–1982+006” Wastewater Line Lateral CrossingRelocationConflict #15STA 1970+40 - 1981+5012" Water Line LateralCrossing RelocationConflict #13STA 1950+0012" Water LineCrossing Relocation³Conflict #14STA 1972+80 - 1987+506" Force Main LateralCrossing Relocation Conflict #17OMMITEDBEGIN PROJECTSTA: 1800+00Legend!.Sewer ManholeUtility LineProposed IH-45 Segment 2B Page 16 of 113
!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.!.1,60001,600800FeetConflict #25STA 2014+806” Force MainCrossing RelocationConflict #26STA 2012+506” Force Main LateralCrossing RelocationConflict #27STA 2012+5012” Water Line LateralCrossing RelocationConflict #29STA 2017+5012” Water LineCrossing RelocationConflict #28STA 2015+506” Force Main LateralCrossing RelocationConflict #30STA 2028+504” Force MainCrossing RelocationConflict #31STA 2036+004” Force Main LateralCrossing RelocationConflict #32STA 2039+404” Force Main LateralCrossing RelocationConflict #35STA 2049+506” Water Line LateralCrossing RelocationConflict #34STA 2053+50 – 2080+006” Water Line LateralCrossing RelocationConflict #33STA 2043+00 – 2078+004” Force Main LateralCrossing RelocationConflict #36STA 2087+504” Force Main LateralCrossing RelocationConflict #37STA 2091+006” Water Line LateralCrossing RelocationConflict #38STA 2102+006” Water LineCrossing RelocationConflict #39STA 2115+606” Water Line LateralCrossing RelocationConflict #40STA 2115+604” Force Main Lateral CrossingConflict #42 STA 2135+204” Force Main LateralCrossing RelocationConflict #41STA 2135+206” Water Line LateralCrossing Relocation³END PROJECTSTA: 2140+00Legend!.Sewer ManholeUtility LineProposed IH-45 Segment 2B RPS PROJ. NO.:DATE: OCTOBER 2020SCALE:EXHIBIT2Overall Utility Relocation LayoutIH-45 Segment 2BUtility Relocations1 " = 1,600 'Page 17 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.c.
Agenda Item: Consider authorizing the Mayor to abandon and release Water Line Easements situated
on property of Elion Management, LLC, located at 500 State Highway 19.
Initiating Department/Presenter: Engineering
Presenter:
Kathlie Jeng-Bulloch, City Engineer
Recommended Motion:
Move to authorize the Mayor to abandon and release 10' Water Line Easements situated on property of
Elion Management, LLC in exchange of the 30' wide Public Utility Easement along its entire frontage on
State Highway 19.
Strategic Initiative: Goal #4, Infrastructure - Ensure the quality of the City utilities, transportation and
physical structures so that the City’s core services can be provided in an effective and efficient manner.
Discussion:
These easements were granted to the City of Huntsville between 1980 and 1994 as Utility Easements.
There are existing water lines and water meters on the subject tract which were installed around 1980.
The existing water lines/water meters are not entirely within the existing easement (See Sheet 1).
Elion Management, LLC acquired the subject tract in May 2021 and is developing the tract by platting it
into four (4) commercial Lots. Part of the existing water lines must be relocated and extended to serve
new lots. The existing 10’ wide easement for the water line will no longer serve any purpose. Elion
Management wishes the City to abandon the existing 10’ water line/water meter easements and is
willing to assume ownership of water line and maintain it.
In exchange for releasing the 10’ wide easements, Elion will grant a 30’ wide Public Utility Easement
along its entire frontage on State highway 19 (See Sheet 2),
This is to be accomplished by authorizing the Mayor to participate in the acknowledgement of the Elion
Commercial Plat creating the 4 lots and 30’ wide public utility Easement.
Previous Council Action: No
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Financial Implications: N/A
Approvals:
Kathlie Jeng-Bulloch
Kristy Doll
Aron Kulhavy
Associated Information:
1. Existing Sheet 1
2. Proposed Sheet 2
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CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.d.
Agenda Item: Consider authorizing the City Manager to enter into an agreement with Tyler
Technologies for their time & attendance software ("Executime") and timeclocks.
Initiating Department/Presenter: Finance
Presenter:
Steve Ritter, Finance Director
Recommended Motion: Move to authorize the City Manager to enter into an agreement with Tyler
Technologies for their time & attendance software ("Executime") and timeclocks.
Strategic Initiative: Goal #6 - Finance - Provide a sustainable, efficient and fiscally sound
government through conservative fiscal practices and resource management.
Discussion: The City has been using a time and attendance software for 10+ years. Transitioning to
Tyler Tech's "Executime" software will save the City approximately $5,000 annually after the initial
purchase cost. The initial purchase cost, including 7 timeclocks, is $44,985. Annual maintenance fees
are $17,094. This Tyler Tech product will integrate seamlessly with data in the City's "New World"
finance and accounting system. The current time and attendance software in use does not integrate
with the finance and accounting system and additions, terminations, and changes to the status of
employees has to be entered manually.
Previous Council Action: None
Financial Implications: Item is budgeted: $50,000.00 was budgeted in the FY 22 - 23 budget for the
original purchase. The annual maintence fee cost was budgeted for as an operational cost in the FY 22 -
23 budget.
Approvals:
Kathlie Jeng-Bulloch
Kristy Doll
Aron Kulhavy
Associated Information:
1. Huntsville TX Agreement SaaS 102022
2. ExecuTime Quote - Huntsville, TX (SaaS)(10.17.22)(TA only and 6 7 inch clocks)
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SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement is made between Tyler Technologies, Inc. and Client.
WHEREAS, Client selected Tyler to provide certain products and services set forth in the Investment
Summary, including providing Client with access to Tyler’s proprietary software products, and Tyler
desires to provide such products and services under the terms of this Agreement;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and promises set forth
in this Agreement, Tyler and Client agree as follows:
SECTION A – DEFINITIONS
“Agreement” means this Software as a Service Agreement.
“Business Travel Policy” means our business travel policy. A copy of our current Business Travel
Policy is attached as Schedule 1 to Exhibit B.
“Client” means City of Hunstville, Texas.
“Data” means your data necessary to utilize the Tyler Software.
“Data Storage Capacity” means the contracted amount of storage capacity for your Data
identified in the Investment Summary.
“Defect” means a failure of the Tyler Software to substantially conform to the functional
descriptions set forth in our written proposal to you, or their functional equivalent. Future
functionality may be updated, modified, or otherwise enhanced through our maintenance and
support services, and the governing functional descriptions for such future functionality will be
set forth in our then-current Documentation.
“Defined Users” means the number of users that are authorized to use the SaaS Services. The
Defined Users for the Agreement are as identified in the Investment Summary. If Exhibit A
contains Enterprise Permitting & Licensing labeled software, defined users mean the maximum
number of named users that are authorized to use the Enterprise Permitting & Licensing labeled
modules as indicated in the Investment Summary.
“Developer” means a third party who owns the intellectual property rights to Third Party
Software.
“Documentation” means any online or written documentation related to the use or
functionality of the Tyler Software that we provide or otherwise make available to you, including
instructions, user guides, manuals and other training or self-help documentation.
“Effective Date” means the date by which both your and our authorized representatives have
signed the Agreement.
“Force Majeure” means an event beyond the reasonable control of you or us, including, without
limitation, governmental action, war, riot or civil commotion, fire, natural disaster, or any other
cause that could not with reasonable diligence be foreseen or prevented by you or us.
“Investment Summary” means the agreed upon cost proposal for the products and services
attached as Exhibit A.
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“Invoicing and Payment Policy” means the invoicing and payment policy. A copy of our current
Invoicing and Payment Policy is attached as Exhibit B.
“Order Form” means an ordering document that includes a quote or investment summary and
specifying the items to be provided by Tyler to Client, including any addenda and supplements
thereto.
“SaaS Fees” means the fees for the SaaS Services identified in the Investment Summary.
“SaaS Services” means software as a service consisting of system administration, system
management, and system monitoring activities that Tyler performs for the Tyler Software, and
includes the right to access and use the Tyler Software, receive maintenance and support on the
Tyler Software, including Downtime resolution under the terms of the SLA, and Data storage and
archiving. SaaS Services do not include support of an operating system or hardware, support
outside of our normal business hours, or training, consulting or other professional services.
“SLA” means the service level agreement. A copy of our current SLA is attached hereto as
Exhibit C.
“Support Call Process” means the support call process applicable to all of our customers who
have licensed the Tyler Software. A copy of our current Support Call Process is attached as
Schedule 1 to Exhibit C.
“Third Party Hardware” means the third party hardware, if any, identified in the Investment
Summary.
“Third Party Products” means the Third Party Software and Third Party Hardware.
“Third Party SaaS Services” means software as a service provided by a third party, if any,
identified in the Investment Summary.
“Third Party Services” means the third party services, if any, identified in the Investment
Summary.
“Third Party Software” means the third party software, if any, identified in the Investment
Summary.
“Third Party Terms” means, if any, the end user license agreement(s) or similar terms for the
Third Party Products or other parties’ products or services, as applicable, and attached or
indicated at Exhibit D.
“Tyler” means Tyler Technologies, Inc., a Delaware corporation.
“Tyler Software” means our proprietary software, including any integrations, custom
modifications, and/or other related interfaces identified in the Investment Summary and
licensed by us to you through this Agreement.
“we”, “us”, “our” and similar terms mean Tyler.
“you” and similar terms mean Client.
SECTION B – SAAS SERVICES
1. Rights Granted. We grant to you the non-exclusive, non-assignable limited right to use the SaaS
Services solely for your internal business purposes for the number of Defined Users only. The Tyler
Software will be made available to you according to the terms of the SLA. You acknowledge that we
have no delivery obligations and we will not ship copies of the Tyler Software as part of the SaaS
Services. You may use the SaaS Services to access updates and enhancements to the Tyler Software,
as further described in Section C(9). The foregoing notwithstanding, to the extent we have sold you
perpetual licenses for Tyler Software, if and listed in the Investment Summary, for which you are
receiving SaaS Services, your rights to use such Tyler Software are perpetual, subject to the terms
and conditions of this Agreement including, without limitation, Section B(4). We will make any such
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software available to you for download.
2. SaaS Fees. You agree to pay us the SaaS Fees. Those amounts are payable in accordance with our
Invoicing and Payment Policy. The SaaS Fees are based on the number of Defined Users and amount
of Data Storage Capacity. You may add additional users or additional data storage capacity on the
terms set forth in Section H(1). In the event you regularly and/or meaningfully exceed the Defined
Users or Data Storage Capacity, we reserve the right to charge you additional fees commensurate
with the overage(s).
3. Ownership.
3.1 We retain all ownership and intellectual property rights to the SaaS Services, the Tyler Software,
and anything developed by us under this Agreement. You do not acquire under this Agreement
any license to use the Tyler Software in excess of the scope and/or duration of the SaaS Services.
3.2 The Documentation is licensed to you and may be used and copied by your employees for
internal, non-commercial reference purposes only.
3.3 You retain all ownership and intellectual property rights to the Data. You expressly recognize
that except to the extent necessary to carry out our obligations contained in this Agreement, we
do not create or endorse any Data used in connection with the SaaS Services.
4. Restrictions. You may not: (a) make the Tyler Software or Documentation resulting from the SaaS
Services available in any manner to any third party for use in the third party’s business operations;
(b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of
the SaaS Services; (c) access or use the SaaS Services in order to build or support, and/or assist a
third party in building or supporting, products or services competitive to us; or (d) license, sell, rent,
lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service
bureau use, or otherwise commercially exploit or make the SaaS Services, Tyler Software, or
Documentation available to any third party other than as expressly permitted by this Agreement.
5. Software Warranty. We warrant that the Tyler Software will perform without Defects during the
term of this Agreement. If the Tyler Software does not perform as warranted, we will use all
reasonable efforts, consistent with industry standards, to cure the Defect in accordance with the
maintenance and support process set forth in Section C(9), below, the SLA and our then current
Support Call Process.
6. SaaS Services.
6.1 Our SaaS Services are audited at least yearly in accordance with the AICPA’s Statement on
Standards for Attestation Engagements (“SSAE”) No. 18. We have attained, and will maintain,
SOC 1 and SOC 2 compliance, or its equivalent, for so long as you are timely paying for SaaS
Services. The scope of audit coverage varies for some Tyler Software solutions. Upon execution
of a mutually agreeable Non-Disclosure Agreement (“NDA”), we will provide you with a
summary of our compliance report(s) or its equivalent. Every year thereafter, for so long as the
NDA is in effect and in which you make a written request, we will provide that same
information. If our SaaS Services are provided using a 3rd party data center, we will provide
available compliance reports for that data center.
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6.2 You will be hosted on shared hardware in a Tyler data center or in a third-party data center. In
either event, databases containing your Data will be dedicated to you and inaccessible to our
other customers.
6.3 Our Tyler data centers have fully-redundant telecommunications access, electrical power, and
the required hardware to provide access to the Tyler Software in the event of a disaster or
component failure. In the event of a data center failure, we reserve the right to employ our
disaster recovery plan for resumption of the SaaS Services. In that event, we commit to a
Recovery Point Objective (“RPO”) of 24 hours and a Recovery Time Objective (“RTO”) of 24
hours. RPO represents the maximum duration of time between the most recent recoverable
copy of your hosted Data and subsequent data center failure. RTO represents the maximum
duration of time following data center failure within which your access to the Tyler Software
must be restored.
6.4 We conduct annual penetration testing of either the production network and/or web
application to be performed. We will maintain industry standard intrusion detection and
prevention systems to monitor malicious activity in the network and to log and block any such
activity. We will provide you with a written or electronic record of the actions taken by us in the
event that any unauthorized access to your database(s) is detected as a result of our security
protocols. We will undertake an additional security audit, on terms and timing to be mutually
agreed to by the parties, at your written request. You may not attempt to bypass or subvert
security restrictions in the SaaS Services or environments related to the Tyler Software.
Unauthorized attempts to access files, passwords or other confidential information, and
unauthorized vulnerability and penetration test scanning of our network and systems (hosted or
otherwise) is prohibited without the prior written approval of our IT Security Officer.
6.5 We test our disaster recovery plan on an annual basis. Our standard test is not client-specific.
Should you request a client-specific disaster recovery test, we will work with you to schedule
and execute such a test on a mutually agreeable schedule. At your written request, we will
provide test results to you within a commercially reasonable timeframe after receipt of the
request.
6.6 We will be responsible for importing back-up and verifying that you can log-in. You will be
responsible for running reports and testing critical processes to verify the returned Data.
6.7 We provide secure Data transmission paths between each of your workstations and our servers.
6.8 Tyler data centers are accessible only by authorized personnel with a unique key entry. All other
visitors to Tyler data centers must be signed in and accompanied by authorized personnel.
Entry attempts to the data center are regularly audited by internal staff and external auditors to
ensure no unauthorized access.
6.9 Where applicable with respect to our applications that take or process card payment data, we
are responsible for the security of cardholder data that we possess, including functions relating
to storing, processing, and transmitting of the cardholder data and affirm that, as of the
Effective Date, we comply with applicable requirements to be considered PCI DSS compliant and
have performed the necessary steps to validate compliance with the PCI DSS. We agree to
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supply the current status of our PCI DSS compliance program in the form of an official
Attestation of Compliance, which can be found at https://www.tylertech.com/about-
us/compliance, and in the event of any change in our status, will comply with applicable notice
requirements.
SECTION C – PROFESSIONAL SERVICES
1. Professional Services. We will provide you the various implementation-related services itemized in
the Investment Summary and described in the Statement of Work.
2. Professional Services Fees. You agree to pay us the professional services fees in the amounts set
forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and
Payment Policy. You acknowledge that the fees stated in the Investment Summary are good-faith
estimates of the amount of time and materials required for your implementation. We will bill you
the actual fees incurred based on the in-scope services provided to you. Any discrepancies in the
total values set forth in the Investment Summary will be resolved by multiplying the applicable
hourly rate by the quoted hours.
3. Additional Services. The Investment Summary contains, and the Statement of Work describes, the
scope of services and related costs (including programming and/or interface estimates) required for
the project based on our understanding of the specifications you supplied. If additional work is
required, or if you use or request additional services, we will provide you with an addendum or
change order, as applicable, outlining the costs for the additional work. The price quotes in the
addendum or change order will be valid for thirty (30) days from the date of the quote.
4. Cancellation. If travel is required, we will make all reasonable efforts to schedule travel for our
personnel, including arranging travel reservations, at least two (2) weeks in advance of
commitments. Therefore, if you cancel services less than two (2) weeks in advance (other than for
Force Majeure or breach by us), you will be liable for all (a) non-refundable expenses incurred by us
on your behalf, and (b) daily fees associated with cancelled professional services if we are unable to
reassign our personnel. We will make all reasonable efforts to reassign personnel in the event you
cancel within two (2) weeks of scheduled commitments.
5. Services Warranty. We will perform the services in a professional, workmanlike manner, consistent
with industry standards. In the event we provide services that do not conform to this warranty, we
will re-perform such services at no additional cost to you.
6. Site Access and Requirements. At no cost to us, you agree to provide us with full and free access to
your personnel, facilities, and equipment as may be reasonably necessary for us to provide
implementation services, subject to any reasonable security protocols or other written policies
provided to us as of the Effective Date, and thereafter as mutually agreed to by you and us.
7. Background Checks. For at least the past twelve (12) years, all of our employees have undergone
criminal background checks prior to hire. All employees sign our confidentiality agreement and
security policies.
8. Client Assistance. You acknowledge that the implementation of the Tyler Software is a cooperative
process requiring the time and resources of your personnel. You agree to use all reasonable efforts
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to cooperate with and assist us as may be reasonably required to meet the agreed upon project
deadlines and other milestones for implementation. This cooperation includes at least working with
us to schedule the implementation-related services outlined in this Agreement. We will not be
liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or
to the failure by your personnel to provide such cooperation and assistance (either through action
or omission).
9. Maintenance and Support. For so long as you timely pay your SaaS Fees according to the Invoicing
and Payment Policy, then in addition to the terms set forth in the SLA and the Support Call Process,
we will:
9.1 perform our maintenance and support obligations in a professional, good, and workmanlike
manner, consistent with industry standards, to resolve Defects in the Tyler Software (subject to
any applicable release life cycle policy);
9.2 provide support during our established support hours;
9.3 maintain personnel that are sufficiently trained to be familiar with the Tyler Software and Third
Party Software, if any, in order to provide maintenance and support services;
9.4 make available to you all releases to the Tyler Software (including updates and enhancements)
that we make generally available without additional charge to customers who have a
maintenance and support agreement in effect; and
9.5 provide non-Defect resolution support of prior releases of the Tyler Software in accordance with
any applicable release life cycle policy.
We will use all reasonable efforts to perform support services remotely. Currently, we use a third-party
secure unattended connectivity tool called Bomgar, as well as GotoAssist by Citrix. Therefore, you agree
to maintain a high-speed internet connection capable of connecting us to your PCs and server(s). You
agree to provide us with a login account and local administrative privileges as we may reasonably
require to perform remote services. We will, at our option, use the secure connection to assist with
proper diagnosis and resolution, subject to any reasonably applicable security protocols. If we cannot
resolve a support issue remotely, we may be required to provide onsite services. In such event, we will
be responsible for our travel expenses, unless it is determined that the reason onsite support was
required was a reason outside our control. Either way, you agree to provide us with full and free access
to the Tyler Software, working space, adequate facilities within a reasonable distance from the
equipment, and use of machines, attachments, features, or other equipment reasonably necessary for
us to provide the maintenance and support services, all at no charge to us. We strongly recommend
that you also maintain your VPN for backup connectivity purposes.
For the avoidance of doubt, SaaS Fees do not include the following services: (a) onsite support (unless
Tyler cannot remotely correct a Defect in the Tyler Software, as set forth above); (b) application design;
(c) other consulting services; or (d) support outside our normal business hours as listed in our then-
current Support Call Process. Requested services such as those outlined in this section will be billed to
you on a time and materials basis at our then current rates. You must request those services with at
least one (1) weeks’ advance notice.
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SECTION D – THIRD PARTY PRODUCTS
1. Third Party Hardware. We will sell, deliver, and install onsite the Third Party Hardware, if you have
purchased any, for the price set forth in the Investment Summary. Those amounts are payable in
accordance with our Invoicing and Payment Policy.
2. Third Party Software. As part of the SaaS Services, you will receive access to the Third Party
Software and related documentation for internal business purposes only. Your rights to the Third
Party Software will be governed by the Third Party Terms.
3. Third Party Products Warranties.
3.1 We are authorized by each Developer to grant access to the Third Party Software.
3.2 The Third Party Hardware will be new and unused, and upon payment in full, you will receive
free and clear title to the Third Party Hardware.
3.3 You acknowledge that we are not the manufacturer of the Third Party Products. We do not
warrant or guarantee the performance of the Third Party Products. However, we grant and pass
through to you any warranty that we may receive from the Developer or supplier of the Third
Party Products.
4. Third Party Services. If you have purchased Third Party Services, those services will be provided
independent of Tyler by such third-party at the rates set forth in the Investment Summary and in
accordance with our Invoicing and Payment Policy.
SECTION E - INVOICING AND PAYMENT; INVOICE DISPUTES
1. Invoicing and Payment. We will invoice you the SaaS Fees and fees for other professional services in
the Investment Summary per our Invoicing and Payment Policy, subject to Section E(2).
2. Invoice Disputes. If you believe any delivered software or service does not conform to the
warranties in this Agreement, you will provide us with written notice within thirty (30) days of your
receipt of the applicable invoice. The written notice must contain reasonable detail of the issues
you contend are in dispute so that we can confirm the issue and respond to your notice with either a
justification of the invoice, an adjustment to the invoice, or a proposal addressing the issues
presented in your notice. We will work with you as may be necessary to develop an action plan that
outlines reasonable steps to be taken by each of us to resolve any issues presented in your notice.
You may withhold payment of the amount(s) actually in dispute, and only those amounts, until we
complete the action items outlined in the plan. If we are unable to complete the action items
outlined in the action plan because of your failure to complete the items agreed to be done by you,
then you will remit full payment of the invoice. We reserve the right to suspend delivery of all SaaS
Services, including maintenance and support services, if you fail to pay an invoice not disputed as
described above within fifteen (15) days of notice of our intent to do so.
SECTION F – TERM AND TERMINATION
1. Term. The initial term of this Agreement is equal to the number of years indicated for SaaS Services
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in Exhibit A, commencing on the first day of the first month following the Effective Date, unless
earlier terminated as set forth below. If no duration is indicated in Exhibit A, the initial term is one
(1) year. Upon expiration of the initial term, this Agreement will renew automatically for additional
one (1) year renewal terms at our then-current SaaS Fees unless terminated in writing by either
party at least sixty (60) days prior to the end of the then-current renewal term. Your right to access
or use the Tyler Software and the SaaS Services will terminate at the end of this Agreement.
2. Termination. This Agreement may be terminated as set forth below. In the event of termination,
you will pay us for all undisputed fees and expenses related to the software, products, and/or
services you have received, or we have incurred or delivered, prior to the effective date of
termination. Disputed fees and expenses in all terminations other than your termination for cause
must have been submitted as invoice disputes in accordance with Section E(2).
2.1 Failure to Pay SaaS Fees. You acknowledge that continued access to the SaaS Services is
contingent upon your timely payment of SaaS Fees. If you fail to timely pay the SaaS Fees, we
may discontinue the SaaS Services and deny your access to the Tyler Software. We may also
terminate this Agreement if you don’t cure such failure to pay within forty-five (45) days of
receiving written notice of our intent to terminate.
2.2 For Cause. If you believe we have materially breached this Agreement, you will invoke the
Dispute Resolution clause set forth in Section H(3). You may terminate this Agreement for cause
in the event we do not cure, or create a mutually agreeable action plan to address, a material
breach of this Agreement within the thirty (30) day window set forth in Section H(3).
2.3 Force Majeure. Either party has the right to terminate this Agreement if a Force Majeure event
suspends performance of the SaaS Services for a period of forty-five (45) days or more.
2.4 Lack of Appropriations. If you should not appropriate or otherwise make available funds
sufficient to utilize the SaaS Services, you may unilaterally terminate this Agreement upon thirty
(30) days written notice to us. You will not be entitled to a refund or offset of previously paid,
but unused SaaS Fees. You agree not to use termination for lack of appropriations as a
substitute for termination for convenience.
SECTION G – INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
1. Intellectual Property Infringement Indemnification.
1.1 We will defend you against any third party claim(s) that the Tyler Software or Documentation
infringes that third party’s patent, copyright, or trademark, or misappropriates its trade secrets,
and will pay the amount of any resulting adverse final judgment (or settlement to which we
consent). You must notify us promptly in writing of the claim and give us sole control over its
defense or settlement. You agree to provide us with reasonable assistance, cooperation, and
information in defending the claim at our expense.
1.2 Our obligations under this Section G(1) will not apply to the extent the claim or adverse final
judgment is based on your use of the Tyler Software in contradiction of this Agreement,
including with non-licensed third parties, or your willful infringement.
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1.3 If we receive information concerning an infringement or misappropriation claim related to the
Tyler Software, we may, at our expense and without obligation to do so, either: (a) procure for
you the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a
functional equivalent, in which case you will stop running the allegedly infringing Tyler Software
immediately. Alternatively, we may decide to litigate the claim to judgment, in which case you
may continue to use the Tyler Software consistent with the terms of this Agreement.
1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software
is enjoined by a court of competent jurisdiction, in addition to paying any adverse final
judgment (or settlement to which we consent), we will, at our option, either: (a) procure the
right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional
equivalent. This section provides your exclusive remedy for third party copyright, patent, or
trademark infringement and trade secret misappropriation claims.
2. General Indemnification.
2.1 We will indemnify and hold harmless you and your agents, officials, and employees from and
against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including
reasonable attorney's fees and costs) for (a) personal injury or property damage to the extent
caused by our negligence or willful misconduct; or (b) our violation of PCI-DSS requirements or a
law applicable to our performance under this Agreement. You must notify us promptly in
writing of the claim and give us sole control over its defense or settlement. You agree to
provide us with reasonable assistance, cooperation, and information in defending the claim at
our expense.
2.2 To the extent permitted by applicable law, you will indemnify and hold harmless us and our
agents, officials, and employees from and against any and all third-party claims, losses,
liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for
personal injury or property damage to the extent caused by your negligence or willful
misconduct; or (b) your violation of a law applicable to your performance under this Agreement.
We will notify you promptly in writing of the claim and will give you sole control over its defense
or settlement. We agree to provide you with reasonable assistance, cooperation, and
information in defending the claim at your expense.
3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL OTHER
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. CLIENT UNDERSTANDS AND AGREES THAT TYLER
DISCLAIMS ANY LIABILITY FOR ERRORS THAT RELATE TO USER ERROR.
4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
OUR LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON A THEORY
OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO
YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (A) DURING THE INITIAL TERM, AS SET FORTH
IN SECTION F(1), TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (B) DURING ANY RENEWAL
TERM, THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN
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RELIANCE UPON THIS LIMITATION OF LIABILITY AND TO THE MAXIMUM EXTENT ALLOWED UNDER
APPLICABLE LAW, THE EXCLUSION OF CERTAIN DAMAGES, AND EACH SHALL APPLY REGARDLESS
OF THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATION OF
LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS G(1) AND G(2).
5. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
6. Insurance. During the course of performing services under this Agreement, we agree to maintain
the following levels of insurance: (a) Commercial General Liability of at least $1,000,000; (b)
Automobile Liability of at least $1,000,000; (c) Professional Liability of at least $1,000,000; (d)
Workers Compensation complying with applicable statutory requirements; and (e) Excess/Umbrella
Liability of at least $5,000,000. We will add you as an additional insured to our Commercial General
Liability and Automobile Liability policies, which will automatically add you as an additional insured
to our Excess/Umbrella Liability policy as well. We will provide you with copies of certificates of
insurance upon your written request.
SECTION H – GENERAL TERMS AND CONDITIONS
1. Additional Products and Services. You may purchase additional products and services at the rates
set forth in the Investment Summary for twelve (12) months from the Effective Date by executing a
mutually agreed addendum. If no rate is provided in the Investment Summary, or those twelve (12)
months have expired, you may purchase additional products and services at our then-current list
price, also by executing a mutually agreed addendum. The terms of this Agreement will control any
such additional purchase(s), unless otherwise specifically provided in the addendum.
2. Optional Items. Pricing for any listed optional products and services in the Investment Summary will
be valid for twelve (12) months from the Effective Date.
3. Dispute Resolution. You agree to provide us with written notice within thirty (30) days of becoming
aware of a dispute. You agree to cooperate with us in trying to reasonably resolve all disputes,
including, if requested by either party, appointing a senior representative to meet and engage in
good faith negotiations with our appointed senior representative. Senior representatives will
convene within thirty (30) days of the written dispute notice, unless otherwise agreed. All meetings
and discussions between senior representatives will be deemed confidential settlement discussions
not subject to disclosure under Federal Rule of Evidence 408 or any similar applicable state rule. If
we fail to resolve the dispute, then the parties shall participate in non-binding mediation in an effort
to resolve the dispute. If the dispute remains unresolved after mediation, then either of us may
assert our respective rights and remedies in a court of competent jurisdiction. Nothing in this
section shall prevent you or us from seeking necessary injunctive relief during the dispute resolution
procedures.
4. Taxes. The fees in the Investment Summary do not include any taxes, including, without limitation,
sales, use, or excise tax. If you are a tax-exempt entity, you agree to provide us with a tax-exempt
certificate. Otherwise, we will pay all applicable taxes to the proper authorities and you will
reimburse us for such taxes. If you have a valid direct-pay permit, you agree to provide us with a
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copy. For clarity, we are responsible for paying our income taxes, both federal and state, as
applicable, arising from our performance of this Agreement.
5. Nondiscrimination. We will not discriminate against any person employed or applying for
employment concerning the performance of our responsibilities under this Agreement. This
discrimination prohibition will apply to all matters of initial employment, tenure, and terms of
employment, or otherwise with respect to any matter directly or indirectly relating to employment
concerning race, color, religion, national origin, age, sex, sexual orientation, ancestry, disability that
is unrelated to the individual's ability to perform the duties of a particular job or position, height,
weight, marital status, or political affiliation. We will post, where appropriate, all notices related to
nondiscrimination as may be required by applicable law.
6. E-Verify. We have complied, and will comply, with the E-Verify procedures administered by the U.S.
Citizenship and Immigration Services Verification Division for all of our employees assigned to your
project.
7. Subcontractors. We will not subcontract any services under this Agreement without your prior
written consent, not to be unreasonably withheld.
8. Binding Effect; No Assignment. This Agreement shall be binding on, and shall be for the benefit of,
either your or our successor(s) or permitted assign(s). Neither party may assign this Agreement
without the prior written consent of the other party; provided, however, your consent is not
required for an assignment by us as a result of a corporate reorganization, merger, acquisition, or
purchase of substantially all of our assets.
9. Force Majeure. Except for your payment obligations, neither party will be liable for delays in
performing its obligations under this Agreement to the extent that the delay is caused by Force
Majeure; provided, however, that within ten (10) business days of the Force Majeure event, the
party whose performance is delayed provides the other party with written notice explaining the
cause and extent thereof, as well as a request for a reasonable time extension equal to the
estimated duration of the Force Majeure event.
10. No Intended Third Party Beneficiaries. This Agreement is entered into solely for the benefit of you
and us. No third party will be deemed a beneficiary of this Agreement, and no third party will have
the right to make any claim or assert any right under this Agreement. This provision does not affect
the rights of third parties under any Third Party Terms.
11. Entire Agreement; Amendment. This Agreement represents the entire agreement between you and
us with respect to the subject matter hereof, and supersedes any prior agreements, understandings,
and representations, whether written, oral, expressed, implied, or statutory. Purchase orders
submitted by you, if any, are for your internal administrative purposes only, and the terms and
conditions contained in those purchase orders will have no force or effect. This Agreement may
only be modified by a written amendment signed by an authorized representative of each party.
12. Severability. If any term or provision of this Agreement is held invalid or unenforceable, the
remainder of this Agreement will be considered valid and enforceable to the fullest extent
permitted by law.
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13. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced
by either party, such non-enforcement will not act as or be deemed to act as a waiver or
modification of this Agreement, nor will such non-enforcement prevent such party from enforcing
each and every term of this Agreement thereafter.
14. Independent Contractor. We are an independent contractor for all purposes under this Agreement.
15. Notices. All notices or communications required or permitted as a part of this Agreement, such as
notice of an alleged material breach for a termination for cause or a dispute that must be submitted
to dispute resolution, must be in writing and will be deemed delivered upon the earlier of the
following: (a) actual receipt by the receiving party; (b) upon receipt by sender of a certified mail,
return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of
proof of email delivery; or (d) if not actually received, five (5) days after deposit with the United
States Postal Service authorized mail center with proper postage (certified mail, return receipt
requested) affixed and addressed to the other party at the address set forth on the signature page
hereto or such other address as the party may have designated by proper notice. The consequences
for the failure to receive a notice due to improper notification by the intended receiving party of a
change in address will be borne by the intended receiving party.
16. Client Lists. You agree that we may identify you by name in client lists, marketing presentations, and
promotional materials.
17. Confidentiality. Both parties recognize that their respective employees and agents, in the course of
performance of this Agreement, may be exposed to confidential information and that disclosure of
such information could violate rights to private individuals and entities, including the parties.
Confidential information is nonpublic information that a reasonable person would believe to be
confidential and includes, without limitation, personal identifying information (e.g., social security
numbers) and trade secrets, each as defined by applicable state law. Each party agrees that it will
not disclose any confidential information of the other party and further agrees to take all reasonable
and appropriate action to prevent such disclosure by its employees or agents. The confidentiality
covenants contained herein will survive the termination or cancellation of this Agreement. This
obligation of confidentiality will not apply to information that:
(a) is in the public domain, either at the time of disclosure or afterwards, except by breach of
this Agreement by a party or its employees or agents;
(b) a party can establish by reasonable proof was in that party's possession at the time of initial
disclosure;
(c) a party receives from a third party who has a right to disclose it to the receiving party; or
(d) is the subject of a legitimate disclosure request under the open records laws or similar
applicable public disclosure laws governing this Agreement; provided, however, that in the
event you receive an open records or other similar applicable request, you will give us
prompt notice and otherwise perform the functions required by applicable law.
18. Quarantining of Client Data. Some services provided by Tyler require us to be in possession of your
Data. In the event we detect malware or other conditions associated with your Data that are
reasonably suspected of putting Tyler resources or other Tyler clients’ data at risk, we reserve the
absolute right to move your Data from its location within a multi-tenancy Tyler hosted environment
to an isolated “quarantined” environment without advance notice. Your Data will remain in such
quarantine for a period of at least six (6) months during which time we will review the Data, and all
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traffic associated with the Data, for signs of malware or other similar issues. If no issues are
detected through such reviews during the six (6) month period of quarantine, we will coordinate
with you the restoration of your Data to a non-quarantined environment. In the event your Data
must remain in quarantine beyond this six (6) month period through no fault of Tyler’s, we reserve
the right to require payment of additional fees for the extended duration of quarantine. We will
provide an estimate of what those costs will be upon your request.
19. Business License. In the event a local business license is required for us to perform services
hereunder, you will promptly notify us and provide us with the necessary paperwork and/or contact
information so that we may timely obtain such license.
20. Governing Law. This Agreement will be governed by and construed in accordance with the laws of
your state of domicile, without regard to its rules on conflicts of law.
21. Multiple Originals and Authorized Signatures. This Agreement may be executed in multiple
originals, any of which will be independently treated as an original document. Any electronic, faxed,
scanned, photocopied, or similarly reproduced signature on this Agreement or any amendment
hereto will be deemed an original signature and will be fully enforceable as if an original signature.
Each party represents to the other that the signatory set forth below is duly authorized to bind that
party to this Agreement.
22. Cooperative Procurement. To the maximum extent permitted by applicable law, we agree that this
Agreement may be used as a cooperative procurement vehicle by eligible jurisdictions. We reserve
the right to negotiate and customize the terms and conditions set forth herein, including but not
limited to pricing, to the scope and circumstances of that cooperative procurement.
23. Data & Insights Solution Terms. Your use of certain Tyler solutions includes Tyler’s Data & Insights
data platform. Your rights, and the rights of any of your end users, to use Tyler’s Data & Insights
data platform is subject to the Data & Insights SaaS Services Terms of Service, available at
https://www.tylertech.com/terms/data-insights-saas-services-terms-of-service. By signing a Tyler
Agreement or Order Form, or accessing, installing, or using any of the Tyler solutions listed at the
linked terms, you certify that you have reviewed, understand, and agree to said terms.
24. Contract Documents. This Agreement includes the following exhibits:
Exhibit A Investment Summary
Exhibit B Invoicing and Payment Policy
Schedule 1: Business Travel Policy
Exhibit C Service Level Agreement
Schedule 1: Support Call Process
Exhibit D Third Party Terms
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IN WITNESS WHEREOF, a duly authorized representative of each party has executed this Agreement as
of the date(s) set forth below.
Tyler Technologies, Inc. City of Hunstville
By: By:
Name: Name:
Title: Title:
Date: Date:
Address for Notices: Address for Notices:
Tyler Technologies, Inc. City of Huntsville
One Tyler Drive 1212 Avenue M
Yarmouth, ME 04096 Huntsville, Texas 77340-4608
Attention: Chief Legal Officer Attention: ______________________________
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Exhibit A
1
Exhibit A
Investment Summary
The following Investment Summary details the software and services to be delivered by us to you under
the Agreement. This Investment Summary is effective as of the Effective Date, despite any expiration
date in the Investment Summary that may have lapsed as of the Effective Date. Capitalized terms not
otherwise defined will have the meaning assigned to such terms in the Agreement. In the event of
conflict between the Agreement and terms in the Comments section of this Investment Summary, the
language in the Agreement will prevail.
Tyler sales quotation to be inserted on the following pages.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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Exhibit A
2
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Exhibit A
3
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Exhibit A
4
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Exhibit A
5
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Exhibit B
1
Exhibit B
Invoicing and Payment Policy
We will provide you with the software and services set forth in the Investment Summary of the
Agreement. Capitalized terms not otherwise defined will have the meaning assigned to such terms in
the Agreement.
Invoicing: We will invoice you for the applicable software and services in the Investment Summary as
set forth below. Your rights to dispute any invoice are set forth in the Agreement.
1. SaaS Fees. SaaS Fees are invoiced on an annual basis, beginning on the commencement of the
initial term as set forth in Section F (1) of this Agreement. Your annual SaaS fees for the initial
term are set forth in the Investment Summary. Upon expiration of the initial term, your annual
SaaS fees will be at our then-current rates.
2. Other Tyler Software and Services.
2.1 VPN Device: The fee for the VPN device will be invoiced upon installation of the VPN.
2.2 Implementation and Other Professional Services (including training): Implementation and
other professional services (including training) are billed and invoiced as delivered, at the
rates set forth in the Investment Summary.
2.3 Consulting Services: If you have purchased any Business Process Consulting services, if they
have been quoted as fixed-fee services, they will be invoiced 50% upon your acceptance of
the Best Practice Recommendations, by module, and 50% upon your acceptance of custom
desktop procedures, by module. If you have purchased any Business Process Consulting
services and they are quoted as an estimate, then we will bill you the actual services
delivered on a time and materials basis.
2.4 Conversions: Fixed-fee conversions are invoiced 50% upon initial delivery of the converted
Data, by conversion option, and 50% upon Client acceptance to load the converted Data into
Live/Production environment, by conversion option. Where conversions are quoted as
estimated, we will bill you the actual services delivered on a time and materials basis.
2.5 Requested Modifications to the Tyler Software: Requested modifications to the Tyler
Software are invoiced 50% upon delivery of specifications and 50% upon delivery of the
applicable modification. You must report any failure of the modification to conform to the
specifications within thirty (30) days of delivery; otherwise, the modification will be deemed
to be in compliance with the specifications after the 30-day window has passed. You may
still report Defects to us as set forth in this Agreement.
Page 43 of 113
Exhibit B
2
2.6 Other Fixed Price Services: Other fixed price services are invoiced as delivered, at the rates
set forth in the Investment Summary. For the avoidance of doubt, where “Project Planning
Services” are provided, payment will be due upon delivery of the Implementation Planning
document. Dedicated Project Management services, if any, will be billed monthly in arrears,
beginning on the first day of the month immediately following initiation of project planning.
2.7 Annual Services: Unless otherwise indicated in this Exhibit B, fees for annual services are due
annually, in advance, commencing on the availability of the service. Your annual fees for the
initial term are set forth in the Investment Summary. Upon expiration of the initial term,
your annual fees will be at our then-current rates.
3. Third Party Products.
3.1 Third Party Software License Fees: License fees for Third Party Software, if any, are invoiced
when we make it available to you for downloading.
3.2 Third Party Software Maintenance: The first year maintenance for the Third Party Software
is invoiced when we make it available to you for downloading.
3.3 Third Party Hardware: Third Party Hardware costs, if any, are invoiced upon delivery.
3.4 Third Party Services: Fees for Third Party Services, if any, are invoiced as delivered, along
with applicable expenses, at the rates set forth in the Investment Summary.
3.5 Third Party SaaS: Third Party SaaS Services fees, if any, are invoiced annually, in advance,
commencing with availability of the respective Third Party SaaS Services. Pricing for the first
year of Third Party SaaS Services is indicated in the Investment Summary. Pricing for
subsequent years will be at the respective third party’s then-current rates.
4. Transaction Fees. Unless paid directly by an end user at the time of transaction, per transaction
(call, message, etc.) fees are invoiced on a quarterly basis. Fees are indicated in Schedule A and
may be increased by Tyler upon notice of no less than thirty (30) days.
5. Expenses. The service rates in the Investment Summary do not include travel expenses.
Expenses for Tyler delivered services will be billed as incurred and only in accordance with our
then-current Business Travel Policy, plus a 10% travel agency processing fee. Our current
Business Travel Policy is attached to this Exhibit B as Schedule 1. Copies of receipts will be
provided upon request; we reserve the right to charge you an administrative fee depending on
the extent of your requests. Receipts for miscellaneous items less than twenty-five dollars and
mileage logs are not available.
Payment. Payment for undisputed invoices is due within forty-five (45) days of the invoice date. We
prefer to receive payments electronically. Our electronic payment information is available by contacting
AR@tylertech.com.
Page 44 of 113
Exhibit B
Schedule 1
1
Exhibit B
Schedule 1
Business Travel Policy
1. Air Travel
A. Reservations & Tickets
The Travel Management Company (TMC) used by Tyler will provide an employee with a direct flight
within two hours before or after the requested departure time, assuming that flight does not add
more than three hours to the employee’s total trip duration and the fare is within $100 (each way)
of the lowest logical fare. If a net savings of $200 or more (each way) is possible through a
connecting flight that is within two hours before or after the requested departure time and that
does not add more than three hours to the employee’s total trip duration, the connecting flight
should be accepted.
Employees are encouraged to make advanced reservations to take full advantage of discount
opportunities. Employees should use all reasonable efforts to make travel arrangements at least
two (2) weeks in advance of commitments. A seven (7) day advance booking requirement is
mandatory. When booking less than seven (7) days in advance, management approval will be
required.
Except in the case of international travel where a segment of continuous air travel is six (6) or more
consecutive hours in length, only economy or coach class seating is reimbursable. Employees shall
not be reimbursed for “Basic Economy Fares” because these fares are non-refundable and have
many restrictions that outweigh the cost-savings.
B. Baggage Fees
Reimbursement of personal baggage charges are based on trip duration as follows:
•Up to five (5) days = one (1) checked bag
•Six (6) or more days = two (2) checked bags
Baggage fees for sports equipment are not reimbursable.
Page 45 of 113
Exhibit B
Schedule 1
2
2. Ground Transportation
A. Private Automobile
Mileage Allowance – Business use of an employee’s private automobile will be reimbursed at the
current IRS allowable rate, plus out of pocket costs for tolls and parking. Mileage will be calculated
by using the employee's office as the starting and ending point, in compliance with IRS regulations.
Employees who have been designated a home office should calculate miles from their home.
B. Rental Car
Employees are authorized to rent cars only in conjunction with air travel when cost, convenience,
and the specific situation reasonably require their use. When renting a car for Tyler business,
employees should select a “mid-size” or “intermediate” car. “Full” size cars may be rented when
three or more employees are traveling together. Tyler carries leased vehicle coverage for business
car rentals; except for employees traveling to Alaska and internationally (excluding Canada),
additional insurance on the rental agreement should be declined.
C. Public Transportation
Taxi or airport limousine services may be considered when traveling in and around cities or to and
from airports when less expensive means of transportation are unavailable or impractical. The
actual fare plus a reasonable tip (15-18%) are reimbursable. In the case of a free hotel shuttle to the
airport, tips are included in the per diem rates and will not be reimbursed separately.
D. Parking & Tolls
When parking at the airport, employees must use longer term parking areas that are measured in
days as opposed to hours. Park and fly options located near some airports may also be used. For
extended trips that would result in excessive parking charges, public transportation to/from the
airport should be considered. Tolls will be reimbursed when receipts are presented.
3. Lodging
Tyler’s TMC will select hotel chains that are well established, reasonable in price, and conveniently
located in relation to the traveler's work assignment. Typical hotel chains include Courtyard,
Fairfield Inn, Hampton Inn, and Holiday Inn Express. If the employee has a discount rate with a local
hotel, the hotel reservation should note that discount and the employee should confirm the lower
rate with the hotel upon arrival. Employee memberships in travel clubs such as AAA should be
noted in their travel profiles so that the employee can take advantage of any lower club rates.
“No shows” or cancellation fees are not reimbursable if the employee does not comply with the
hotel’s cancellation policy.
Tips for maids and other hotel staff are included in the per diem rate and are not reimbursed
separately.
Page 46 of 113
Exhibit B
Schedule 1
3
Employees are not authorized to reserve non-traditional short-term lodging, such as Airbnb, VRBO,
and HomeAway. Employees who elect to make such reservations shall not be reimbursed.
4. Meals and Incidental Expenses
Employee meals and incidental expenses while on travel status within the continental U.S. are in
accordance with the federal per diem rates published by the General Services Administration.
Incidental expenses include tips to maids, hotel staff, and shuttle drivers and other minor travel
expenses. Per diem rates are available at www.gsa.gov/perdiem.
Per diem for Alaska, Hawaii, U.S. protectorates and international destinations are provided
separately by the Department of State and will be determined as required.
A. Overnight Travel
For each full day of travel, all three meals are reimbursable. Per diems on the first and last day of a
trip are governed as set forth below.
Departure Day
Depart before 12:00 noon Lunch and dinner
Depart after 12:00 noon
Return Day
Dinner
Return before 12:00 noon Breakfast
Return between 12:00 noon & 7:00 p.m. Breakfast and lunch
Return after 7:00 p.m.* Breakfast, lunch and dinner
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
The reimbursement rates for individual meals are calculated as a percentage of the full day per diem
as follows:
Breakfast 15%
Lunch 25%
Dinner 60%
B. Same Day Travel
Employees traveling at least 100 miles to a site and returning in the same day are eligible to claim
lunch on an expense report. Employees on same day travel status are eligible to claim dinner in the
event they return home after 7:00 p.m.*
*7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner.
Page 47 of 113
Exhibit B
Schedule 1
4
5. Internet Access – Hotels and Airports
Employees who travel may need to access their e-mail at night. Many hotels provide free high
speed internet access and Tyler employees are encouraged to use such hotels whenever possible. If
an employee’s hotel charges for internet access it is reimbursable up to $10.00 per day. Charges for
internet access at airports are not reimbursable.
6. International Travel
All international flights with the exception of flights between the U.S. and Canada should be
reserved through TMC using the “lowest practical coach fare” with the exception of flights that are
six (6) or more consecutive hours in length. In such event, the next available seating class above
coach shall be reimbursed.
When required to travel internationally for business, employees shall be reimbursed for photo fees,
application fees, and execution fees when obtaining a new passport book, but fees related to
passport renewals are not reimbursable. Visa application and legal fees, entry taxes and departure
taxes are reimbursable.
The cost of vaccinations that are either required for travel to specific countries or suggested by the
U.S. Department of Health & Human Services for travel to specific countries, is reimbursable.
Section 4, Meals & Incidental Expenses, and Section 2.b., Rental Car, shall apply to this section.
Page 48 of 113
Exhibit C
1
Exhibit C
Service Level Agreement
I. Agreement Overview
This SLA operates in conjunction with, and does not supersede or replace any part of, the Agreement. It
outlines the information technology service levels that we will provide to you to ensure the availability of
the application services that you have requested us to provide. This SLA does not apply to any Third Party
SaaS Services. All other support services are documented in the Support Call Process.
II. Definitions. Except as defined below, all defined terms have the meaning set forth in the
Agreement.
Actual Attainment: The percentage of time the Tyler Software is available during a calendar quarter,
calculated as follows: (Service Availability – Downtime) ÷ Service Availability.
Client Error Incident: Any service unavailability resulting from your applications, content or equipment, or
the acts or omissions of any of your service users or third-party providers over whom we exercise no
control.
Downtime: Those minutes during Service Availability, as defined below, when all users cannot launch,
login, search or save primary data in the Tyler Software. Downtime does not include those instances in
which only a Defect is present.
Emergency Maintenance: (1) maintenance that is required to patch a critical security vulnerability; (2)
maintenance that is required to prevent an imminent outage of Service Availability; or (3) maintenance
that is mutually agreed upon in writing by Tyler and the Client.
Planned Downtime: Downtime that occurs during a Standard or Emergency Maintenance window.
Service Availability: The total number of minutes in a calendar quarter that the Tyler Software is capable
of receiving, processing, and responding to requests, excluding Planned Downtime, Client Error Incidents,
denial of service attacks and Force Majeure.
Standard Maintenance: Routine maintenance to the Tyler Software and infrastructure. Standard
Maintenance is limited to five (5) hours per week.
III. Service Availability
a. Your Responsibilities
Whenever you experience Downtime, you must make a support call according to the procedures outlined
in the Support Call Process. You will receive a support case number.
b. Our Responsibilities
When our support team receives a call from you that Downtime has occurred or is occurring, we will work
with you to identify the cause of the Downtime (including whether it may be the result of Planned
Page 49 of 113
Exhibit C
2
Downtime, a Client Error Incident, Denial of Service attack or Force Majeure). We will also work with you
to resume normal operations.
c. Client Relief
Our targeted Attainment Goal is 100%. You may be entitled to credits as indicated in the Client Relief
Schedule found below. Your relief credit is calculated as a percentage of the SaaS fees paid for the
calendar quarter.
In order to receive relief credits, you must submit a request through one of the channels listed in our
Support Call Process within fifteen days (15) of the end of the applicable quarter. We will respond to your
relief request within thirty (30) day(s) of receipt.
The total credits confirmed by us will be applied to the SaaS Fee for the next billing cycle. Issuing of such
credit does not relieve us of our obligations under the Agreement to correct the problem which created
the service interruption.
Client Relief Schedule
Actual Attainment Client Relief
99.99% - 98.00%Remedial action will be taken
97.99% - 95.00%4%
Below 95.00%5%
IV. Maintenance Notifications
We perform Standard Maintenance during limited windows that are historically known to be reliably
low-traffic times. If and when maintenance is predicted to occur during periods of higher traffic, we will
provide advance notice of those windows and will coordinate to the greatest extent possible with you.
Not all maintenance activities will cause application unavailability. However, if Tyler anticipates that
activities during a Standard or Emergency Maintenance window may make the Tyler Software unavailable,
we will provide advance notice, as reasonably practicable that the Tyler Software will be unavailable
during the maintenance window.
Page 50 of 113
Exhibit C
Schedule 1
1
Exhibit C
Schedule 1
Support Call Process
Support Channels
Tyler Technologies, Inc. provides the following channels of software support for authorized users*:
(1) On-line submission (portal) – for less urgent and functionality-based questions, users may create
support incidents through the Tyler Customer Portal available at the Tyler Technologies website.
A built-in Answer Panel provides users with resolutions to most “how-to” and configuration-
based questions through a simplified search interface with machine learning, potentially
eliminating the need to submit the support case.
(2) Email – for less urgent situations, users may submit emails directly to the software support
group.
(3) Telephone – for urgent or complex questions, users receive toll-free, telephone software
support.
* Channel availability may be limited for certain applications.
Support Resources
A number of additional resources are available to provide a comprehensive and complete support
experience:
(1) Tyler Website – www.tylertech.com – for accessing client tools, documentation, and other
information including support contact information.
(2) Tyler Search -a knowledge based search engine that lets you search multiple sources
simultaneously to find the answers you need, 24x7.
(3) Tyler Community –provides a venue for all Tyler clients with current maintenance agreements to
collaborate with one another, share best practices and resources, and access documentation.
(4) Tyler University – online training courses on Tyler products.
Support Availability
Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday –
Friday) across four US time zones (Pacific, Mountain, Central and Eastern). Tyler’s holiday schedule is
outlined below. There will be no support coverage on these days.
New Year’s Day Labor Day
Martin Luther King, Jr. Day Thanksgiving Day
Memorial Day Day after Thanksgiving
Independence Day Christmas Day
For support teams that provide after-hours service, we will provide you with procedures for contacting
support staff after normal business hours for reporting Priority Level 1 Defects only. Upon receipt of
Page 51 of 113
Exhibit C
Schedule 1
2
such a Defect notification, we will use commercially reasonable efforts to meet the resolution targets
set forth below.
We will also make commercially reasonable efforts to be available for one pre-scheduled Saturday of
each month to assist your IT staff with applying patches and release upgrades, as well as consulting with
them on server maintenance and configuration of the Tyler Software environment.
Incident Handling
Incident Tracking
Every support incident is logged into Tyler’s Customer Relationship Management System and given a
unique case number. This system tracks the history of each incident. The case number is used to track
and reference open issues when clients contact support. Clients may track incidents, using the case
number, through Tyler’s Customer Portal or by calling software support directly.
Incident Priority
Each incident is assigned a priority level, which corresponds to the Client’s needs. Tyler and the Client
will reasonably set the priority of the incident per the chart below. This chart is not intended to address
every type of support incident, and certain “characteristics” may or may not apply depending on
whether the Tyler software has been deployed on customer infrastructure or the Tyler cloud. The goal is
to help guide the Client towards clearly understanding and communicating the importance of the issue
and to describe generally expected response and resolution targets in the production environment only.
References to a “confirmed support incident” mean that Tyler and the Client have successfully validated
the reported Defect/support incident.
Priority
Level Characteristics of Support Incident Resolution Targets*
1
Critical
Support incident that causes (a)
complete application failure or
application unavailability; (b)
application failure or unavailability in
one or more of the client’s remote
location; or (c) systemic loss of
multiple essential system functions.
Tyler shall provide an initial response to Priority Level
1 incidents within one (1) business hour of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents or provide a
circumvention procedure within one (1) business
day. For non-hosted customers, Tyler’s responsibility
for lost or corrupted data is limited to assisting the
Client in restoring its last available database.
Page 52 of 113
Exhibit C
Schedule 1
3
Priority
Level Characteristics of Support Incident Resolution Targets*
2
High
Support incident that causes (a)
repeated, consistent failure of
essential functionality affecting more
than one user or (b) loss or corruption
of data.
Tyler shall provide an initial response to Priority Level
2 incidents within four (4) business hours of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents or provide a
circumvention procedure within ten (10) business
days. For non-hosted customers, Tyler’s
responsibility for loss or corrupted data is limited to
assisting the Client in restoring its last available
database.
3
Medium
Priority Level 1 incident with an
existing circumvention procedure, or
a Priority Level 2 incident that affects
only one user or for which there is an
existing circumvention procedure.
Tyler shall provide an initial response to Priority Level
3 incidents within one (1) business day of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents without the need for a
circumvention procedure with the next published
maintenance update or service pack, which shall
occur at least quarterly. For non-hosted customers,
Tyler’s responsibility for lost or corrupted data is
limited to assisting the Client in restoring its last
available database.
4
Non-
critical
Support incident that causes failure of
non-essential functionality or a
cosmetic or other issue that does not
qualify as any other Priority Level.
Tyler shall provide an initial response to Priority Level
4 incidents within two (2) business days of receipt of
the incident. Once the incident has been confirmed,
Tyler shall use commercially reasonable efforts to
resolve such support incidents, as well as cosmetic
issues, with a future version release.
*Response and Resolution Targets may differ by product or business need
Incident Escalation
If Tyler is unable to resolve any priority level 1 or 2 defect as listed above or the priority of an issue has
elevated since initiation, you may escalate the incident to the appropriate resource, as outlined by each
product support team. The corresponding resource will meet with you and any Tyler staff to establish a
mutually agreeable plan for addressing the defect.
Remote Support Tool
Some support calls may require further analysis of the Client’s database, processes or setup to diagnose
a problem or to assist with a question. Tyler will, at its discretion, use an industry-standard remote
support tool. Tyler’s support team must have the ability to quickly connect to the Client’s system and
view the site’s setup, diagnose problems, or assist with screen navigation. More information about the
remote support tool Tyler uses is available upon request.
Page 53 of 113
Exhibit E
1
Exhibit D
Third Party Terms
RESERVED
Page 54 of 113
2022-357898-G3L3N3 Page 1
Quoted By:Robb Ann Hurst
Quote Expiration:12/31/22
Quote Name:SaaS TA325
Sales Quotation For:
City of Huntsville
1212 Avenue M
Huntsville TX 77340-4608
Tyler Annual Software - SaaS
Description Annual
New World ERP
Time & Attendance
Time & Attendance $ 13,713
TOTAL $ 13,713
3rd Party Hardware, Software and Services
Description Quantity Unit Price Total Annual
ERP
Time & Attendance
Touchscreen 7 : Proximity Reader 7 $ 2,415 $ 16,905 $ 3,381
TOTAL $ 16,905 $ 3,381
Hourly Services
Page 55 of 113
2022-357898-G3L3N3 Page 2
Description Hours Price
New World ERP
Time & Attendance
Time & Attendance Implementation Fees 128 $ 24,960
TOTAL 128 $ 24,960
Fixed Fee Services
Description Units Price Maintenance
New World ERP
Time & Attendance
Project Management 1 $ 3,120 $ 0
TOTAL $ 3,120 $ 0
Summary One Time Fees Recurring Fees
Total Tyler Software $ 0 $ 0
Total SaaS $ 0 $ 13,713
Total Tyler Services $ 28,080 $ 0
Total Third-Party Hardware, Software, Services $ 16,905 $ 3,381
Summary Total $ 44,985 $ 17,094
Contract Total $ 62,079
Page 56 of 113
2022-357898-G3L3N3 Page 3
Any acquisition of clocks and/or clock maintenance is subject to the following terms:
Time & Attendance Clock Terms (tylertech.com)
Client agrees that items in this sales quotation are, upon Client's signature or approval of same, hereby added to the existing agreement ("Agreement")
between the parties and subject to its terms. Additionally, payment for said items, as applicable but subject to any listed assumptions herein, shall conform
to the following terms, subject to payment terms in an agreement, amendment, or similar document in which this sales quotation is included:
• License fees for Tyler and third-party software are invoiced upon the earlier of (i) delivery of the license key or (ii) when Tyler makes such software
available accessible.
• Fees for hardware are invoiced upon delivery.
• Fees for year one of hardware maintenance are invoiced upon delivery of the hardware.
• Annual Maintenance and Support fees, SaaS fees, Hosting fees, and Subscription fees are first payable when Tyler makes the software accessible to the
Client (for Maintenance) or on the first day of the month following the date this quotation was signed (for SaaS, Hosting, and Subscription), and any such
fees are prorated to align with the applicable term under the agreement, with renewals invoiced annually thereafter in accord with the Agreement.
• Fees for services included in this sales quotation shall be invoiced as indicated below.
o Implementation and other professional services fees shall be invoiced as delivered.
o Fixed-fee Business Process Consulting services shall be invoiced 50% upon delivery of the Best Practice Recommendations, by module, and 50%
upon delivery of custom desktop procedures, by module.
o Fixed-fee conversions are invoiced 50% upon initial delivery of the converted data, by conversion option, and 50% upon Client acceptance to load the
converted data into
Live/Production environment, by conversion option. Where conversions are quoted as estimated, Tyler will invoice Client the actual services delivered on
a time and material basis. "
o Except as otherwise provided, other fixed price services are invoiced upon complete delivery of the service. For the avoidance of doubt, where Project
Planning Services are
provided, payment shall be invoiced upon delivery of the Implementation Planning document. Dedicated Project Management services, if any, will be
invoiced monthly in arrears,
beginning on the first day of the month immediately following initiation of project planning.
o If Client has purchased any change management services, those services will be invoiced in accordance with the Agreement.
o Notwithstanding anything to the contrary stated above, the following payment terms shall apply to fees specifically for migrations: Tyler will invoice
Client 50% of any Migration
Services Fees listed above upon Client approval of the product suite migration schedule. The remaining 50%, by line item, will be billed upon the go-live of
the applicable product
suite. Tyler will invoice Client for any Project Management Fees listed above upon the go-live of the first product suite. Annual SaaS Fees will be invoiced
upon availability of the hosted environment.
• Expenses associated with onsite services are invoiced as incurred.
Any SaaS or hosted solutions added to an agreement containing Client-hosted Tyler solutions are subject to Tyler’s SaaS Services terms found here:
Page 57 of 113
2022-357898-G3L3N3 Page 4
https://www.tylertech.com/terms/tyler-saas-services.
Unless otherwise indicated in the contract or amendment thereto, pricing for optional items will be held
For six (6) months from the Quote date or the Effective Date of the Contract, whichever is later.
Customer Approval:Date:
Print Name:P.O.#:
Page 58 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.e.
Agenda Item: Second Reading - Consider the adoption of ordinance 2022-30 amending the
Development Code of the City of Huntsville, Texas Article 12 “Development Review and Approval
Procedure” and Article 13 "Administration".
Initiating Department/Presenter: Development Services
Presenter:
Kevin Byal, Director of Development Services
Recommended Motion: Move to approve ordinance 2022-30 amending the Development Code of
the City of Huntsville, Texas Article 12 “Development Review and Approval Procedure” and Article
13 "Administration".
Strategic Initiative: Goal #5, Resource Development - Enhance the quality of life for citizens, businesses
and visitors by leveraging the human and fiscal resources available to the community.
Discussion: The City of Huntsville Development Code, Articles 12 and 13, specifies the creation and
responsibilities of the Board of Adjustment (BOA). Therein, the board is authorized to hear and decide
appeals where it is alleged there has been an error in any order, requirement, decision, or
determination made by the City Planner or any other administrative official in the administration,
interpretation or enforcement of the Development Code. Additionally, the BOA may consider variance
requests for certain Development Code standards.
A similar separate board, the Board of Adjustments and Appeals (BOAA), is created in the International
Building Code to hear and consider assertions that there has been an error in any order, requirement,
decision, or determination made by the Building Official or any other administrative official in the
administration, interpretation, or enforcement of the International Codes.
The BOA meets on an as-needed-basis and averages 4 to 5 meetings per year to execute their duties.
The BOAA also meets on an as-needed-basis but has only met twice in the last five years. For efficiency,
staff believe that it is reasonable to consolidate the duties of both boards and assign them to the BOA
and retire the BOAA.
This item was presented for consideration and recommendation at the September 15, 2022 Planning
Commission meeting. The Planning Commission voted unanimously to recommend this change.
Approval of this ordinance will consolidate the duties of these boards and place them with the BOA. A
separate ordinance for consideration will amend the building code to eliminate the BOAA.
Previous Council Action: Council held a public hearing at the October 18, 2022 council meeting and had
the first reading of the ordinance.
Page 59 of 113
Financial Implications: None
Approvals:
Aron Kulhavy
Kristy Doll
Associated Information:
1. Ord. 2022-30 amending Dev Code Art. 12&13
2. DevCode Exhibit A
Page 60 of 113
ORDINANCE NO. 2022-30
AN ORDINANCE OF THE CITY OF HUNTSVILLE AMENDING CHAPTER 24 LAND
DEVELOPMENT OF THE HUNTSVILLE, TEXAS CODE OF ORDINANCES BY
ADOPTING REVISIONS TO THE DEVELOPMENT CODE OF THE CITY OF
HUNTSVILLE, TEXAS; REQUIRING THE PUBLICATION OF THIS ORDINANCE;
PROVIDING FOR A SEVERABILITY CLAUSE; REPEALING ORDINANCES IN
CONFLICT WITH THIS ORDINANCE; PROVIDING FOR A PENALTY; MAKING
OTHER PROVISIONS AND FINDINGS THERETO; AND DECLARING AN
EFFECTIVE DATE.
WHEREAS, the Development Code of City of Huntsville, Texas Article 12 “Development
Review and Approval Procedure” establish review and approval procedures for the purpose of
implementing the standards therein; and executing the policies and goals contained in the City of
Huntsville’s Comprehensive Plan and other adopted plans of the City:
WHEREAS, the Development Code of City of Huntsville, Texas Article 13 “Administration”
establish administrative roles and responsibility for the purpose of assigning decision-making
responsibility for the implementation and administration of the Development Code for the
purpose of protecting and promoting the public health, safety and general welfare: and
WHEREAS, the Planning Commission reviewed and recommended adopting the updates to the
City of Huntsville Development Code; and
WHEREAS, the City Council held a public hearing at their meeting on October 18, 2022, prior to
consideration of amending the Ordinance:
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, COUNTY OF WALKER, STATE OF TEXAS:
SECTION 1: The facts and matters set forth in the preamble of this Ordinance are found to be
true and correct and are hereby adopted, ratified, and confirmed.
SECTION 2: The City of Huntsville Development Code Section 12.1001 Authority, Section
13.302 Operation and Section 13.303 Responsibility shall be amended as shown in Exhibit A
attached hereto and incorporated herein.
SECTION 3:All ordinances or parts of Ordinances that are in conflict or inconsistent with the
provisions of this Ordinance shall be, and the same are hereby, repealed and all other ordinances
of the City not in conflict with the provisions of this Ordinance shall remain in full force and effect.
SECTION 4:Should any paragraph, sentence, clause, phrase or section of this Ordinance be
adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of
this Ordinance as a whole or any part or provision thereof, other than the part so declared to be
invalid, illegal or unconstitutional.
Page 61 of 113
SECTION 5:This Ordinance, being a penal ordinance, becomes effective ten (10) days after its date
of passage by the City Council, as provided by Article 4.14 of the Charter of the City of Huntsville, Texas.
SECTION 6: It is hereby officially found and determined that the meeting at which this Ordinance
was passed was open to the public and that public notice of the time, place and purpose of said
meeting was given as required by the Open Meetings Act, Chapter 551 of the Texas Government
Code. Notice was also provided as required by Chapter 1 of the Development Code of the City of
Huntsville, Texas.
PASSED AND APPROVED on this the _______ day of _____________________, _________
THE CITY OF HUNTSVILLE, TEXAS
_________________________________
Andy Brauninger, Mayor
ATTEST:
_____________________________
Kristy Doll, City Secretary
APPROVED AS TO FORM:
_____________________________
Leonard Schneider, City Attorney
Page 62 of 113
Page 1
Exhibit A
ATICLE 12 DEVELOPMENT AND APPROVAL PROCEDDURES
12.1000 APPEALS OF ADMINISTRATIVE DECISIONS
12.1001 Authority
The Board of Adjustment is authorized to hear and decide appeals
where it is alleged there has been an error in any order, requirement,
decision or determination made by the City Planner or any other
administrative official in the administration, interpretation or
enforcement of this Development Code.
The Board of Adjustment is authorized to hear and decide appeals
where it is alleged there has been an error in any order, requirement,
decision or determination made by the Building Official or any other
administrative official in the administration, interpretation or
enforcement of the City of Huntsville Code of Ordinance.
ARTICLE 13 ADMINISTRATION
13.300 BOARD OF ADJUSTMENT
13.302 Operation
13.302.A The Board of Adjustment must conduct meetings, take action and
operate in accordance with its adopted by-laws, this Development Code, the
adopted International Codes and state law.
13.302.B The Board of Adjustment must elect a chairperson and vice-chairperson
annually, at the first regularly scheduled meeting after appointments are made.
13.302.C The City Planner or the Building Official serves as ex officio (non-voting)
secretary of the Board of Adjustment, with responsibility for keeping minutes,
books, files and other records of the Board of Adjustment and performing other
duties as are incidental to the position.
13.302.D A quorum, consisting of at least 4 members of the Board of Adjustment,
must be present in order to conduct official business.
13.303 Responsibilities
The Board of Adjustment is responsible for carrying out those specific review and
decision-making duties assigned by this Development Code as well as appeals by
any person aggrieved or affected by any decision of the building official, including
conducting public hearings and making final decisions on:
13.303.A Variances (see Sec. 12.900); and
13.303.B Appeals of administrative decisions (see Sec. 12.1000); and.
13.303.C Appeals of administrative decisions of the Building Official (see Section
12-20 (7) of the City of Huntsville Code of Ordinance.
Page 63 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 1.f.
Agenda Item: Second Reading - Consider the adoption of ordinance 2022-31 amending the Huntsville
Code of Ordinances, Chapter 12 “BUILDING AND BUILDING REGULATIONS”.
Initiating Department/Presenter: Development Services
Presenter:
Kevin Byal, Director of Development Services
Recommended Motion: Move to approve ordinance 2022-31 amending the Huntsville Code of
Ordinances, Chapter 12 “BUILDING AND BUILDING REGULATIONS”.
Strategic Initiative: Goal #5, Resource Development - Enhance the quality of life for citizens, businesses
and visitors by leveraging the human and fiscal resources available to the community.
Discussion: The City of Huntsville Code of Ordinance Chapter 12, Article II, Sections 12-20, 12-64, 12-65
and 12-66 contain provisions for the establishment of duties and authority for a Board of Adjustments
and Appeals (BOAA) for the purpose of hearing and considering assertions that there has been an error
in any order, requirement, decision, or determination made by the Building Official or any other
administrative official in the administration, interpretation, or enforcement of the International Codes.
A similar separate board, the Board of Adjustment (BOA) has been established through the provisions of
the City of Huntsville Development Code. This board is authorized to hear and decide appeals where it is
alleged there has been an error in any order, requirement, decision, or determination made by the City
Planner or any other administrative official in the administration, interpretation or enforcement of the
Development Code. Additionally, the BOA may consider variance requests for certain Development
Code standards.
The BOAA meets on an as-needed-basis but has only met twice in the last five years. The
BOA also meets on an as-needed-basis and averages 4 to 5 meetings per year to execute their duties.
For efficiency, staff believe that it is reasonable to consolidate the duties of both boards and assign
them to the BOA and retire the BOAA.
This item was presented for consideration and recommendation at the September 15, 2022, Planning
Commission meeting. The Planning Commission voted unanimously to recommend this change.
Approval of this ordinance will amend the building code to eliminate the BOAA.
Previous Council Action: Council held a public hearing at the October 18, 2022 council meeting and had
the first reading of the ordinance.
Page 64 of 113
Financial Implications: None
Approvals:
Aron Kulhavy
Kristy Doll
Associated Information:
1. Ord. 2022-31 - Ch. 12, Board of Adjustments
2. BldgCode Exhibit A
Page 65 of 113
ORDINANCE NO. 2022-31
AN ORDINANCE AMENDING THE CITY OF HUNTSVILLE, TEXAS CODE OF
ORDINANCES, SPECIFICALLY CHAPTER 12 “BUILDINGS AND BUILDING
REGULATIONS”; MAKING OTHER PROVISIONS AND FINDINGS THERETO; AND
DECLARING AN EFFECTIVE DATE.
WHEREAS, the Huntsville Code of Ordinances, Chapter 12 “BUILDING AND BUILDING
REGULATIONS” provides for the regulation of residential and commercial buildings for the
health, safety and public welfare of the City’s residents; and
WHEREAS, the City of Huntsville, as a home rule city may regulate this activity pursuant to its
broad powers of self-government; and
WHEREAS, City Council finds it necessary to amend its existing regulations of these activities
to protect the health and public safety; now therefore; and
WHEREAS, the City Council of the City of Huntsville, Texas now wishes to amend Chapter 12
to help promote the health, safety and welfare of its residents; and
WHEREAS, notice of the agenda for this meeting, was given in accordance with law by posting
the same at the place reserved and designated for notices of public meetings and public activities
and prior to the adoption of this ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, COUNTY OF WALKER, STATE OF TEXAS:
SECTION 1: The facts and matters set forth in the preamble of this Ordinance are found to be
true and correct and are hereby adopted, ratified, and confirmed.
SECTION 2: Huntsville Code of Ordinances Chapter 12 “BUILDINGS AND BUILDING
REGULATIONS”, Article II, Sections 12-20 and 12-26, Article III Section 12-65 and 12-66 are
amended as shown on the attached Exhibit “A”.
SECTION 3:All ordinances or parts of Ordinances that are in conflict or inconsistent with the
provisions of this Ordinance shall be, and the same are hereby, repealed and all other ordinances
of the City not in conflict with the provisions of this Ordinance shall remain in full force and effect.
SECTION 4:Should any paragraph, sentence, clause, phrase or section of this Ordinance be
adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of
this Ordinance as a whole or any part or provision thereof, other than the part so declared to be
invalid, illegal or unconstitutional.
SECTION 5:This Ordinance, being a penal ordinance, becomes effective ten (10) days after its date
Page 66 of 113
of passage by the City Council, as provided by Article 4.14 of the Charter of the City of Huntsville, Texas.
PASSED AND APPROVED on this the __________ day of ________________ 2022.
THE CITY OF HUNTSVILLE
___________________________________
Andy Brauninger, Mayor
ATTEST: APPROVED AS TO FORM:
___________________________ __________________________________
Kristy Doll, City Secretary Leonard Schneider, City Attorney
Page 67 of 113
EXHIBIT A
CHAPTER 12 BUILDINGS AND BUILDING REGUALTIONS
ARTICLE II. – BUILDING CODES
Sec. 12-20. Amendments to International Building Code.
The International Building Code is amended as follows:
(1) Section 101.2.1 is hereby added as follows:
Section 101.2.1. The following appendices are intended for enforcement and are made a part of
this code and the city's adopting ordinance for all intents and purposes:
Appendix B—Board of Appeals.
Appendix C—Group U - Architectural Buildings.
Appendix D—Fire Districts.
Appendix F—Rodent Proofing.
Appendix J—Grading.
Appendix B is amended to read:
B101.2—Membership of board. Each member shall be appointed to a two-year term of office.
Members are appointed by the Mayor with approval of the City Council.
B101.2.2—Qualifications. There is hereby established a board to be called the board of
adjustments and appeals, which shall consist of five members. Such board shall be composed of three
persons with technical background in building design or construction or experience in the building
trades industry, and two other citizens. The mayor (chief appointing authority) shall appoint board
members with the approval of the city council.
B101.3.3—Postponed hearing. Three members of the board shall constitute a quorum. In varying
the application of any provision of this code or in modifying an order of the building official, affirmative
votes of the majority present, but not less than three affirmative votes, shall be required. A board
member shall not act in a case in which he has a personal interest.
(7) Section 113 is amended as follows:
113.1 General. In order to hear and decide appeals of orders, decisions or determinations made
by the building official relative to the application and interpretation of this code, there shall be and is
hereby created a board of appeals as defined in Article 13.300 of the City of Huntsville Development
Code.
113.3 Qualifications. Delete section 113.3.
(78) Section 114.4 is amended as follows:
114.4 Violation penalties. Any person who violates a provision of this code or fails to comply with
any of the requirements thereof or who erects, constructs, alters, repairs or occupies a building or
structure in violation of the approved construction documents or directive of the building official, or of
a permit or certificate issued under the provisions of this code, shall be guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine not exceeding $2.000.00.
(89) Section D101.1.1 is amended to read:
Page 68 of 113
EXHIBIT A
Section D101.1.1. For the purpose of this code, the fire district is established as follows:
Beginning at the intersection of the east line of Avenue N and the south line of 10th Street;
Thence easterly along said south line of 10th Street to the west line of Avenue J;
Thence southerly along said west line of Avenue J to the north line of 13th Street;
Thence westerly along said north line of 13th Street to the east line of Avenue M;
Thence northerly along east line of Avenue M to the point of beginning.
(910) Figure 1608.2 is amended by adding:
City of Huntsville five lbs./sq. ft.
(110) Figure 1609 is amended by adding:
City of Huntsville 100 mph.
(121) Section 3107—Delete section 3107.
(132) Chapter 11—Delete chapter 11.
(Code 1961, § 9.02.02; Ord. No. 94-13, 5-10-1994; Ord. No. 97-35, 11-25-1997; Ord. No. 2000-19, 9-26-2000; Ord.
No. 2002-08, 3-5-2002; Ord. No. 2006-02, 1-3-2006; Ord. No. 2006-22, § 9.02.02(109.3.05), 10-3-2006; Ord. No.
2011-50, § 3, 8-16-2011; Ord. No. 2017-43, § 2(Exh. A), 11-21-2017; Ord. No. 2019-50 , § 2(Exh. A), 9-17-2019; Ord.
No. 2020-35 , § 2(Exh. A), 8-4-2020; Ord. No. 2021-25 , § 2(Exh. A), 9-21-2021)
ARTICLE III. -DEMOLITION OF REPAIR OF DILAPIDATED OR SUBSTANDARD
BUILDINGS
Sec. 12-64. Appeals to board Board of adjustment Adjustmentand appeals.
(a) Any person aggrieved or affected by any decision of the building official may appeal such decision to the
board of adjustment and appeals. Such appeal shall be filed in writing in the building official's office within 30
days after the decision has been rendered by the building official.
(b) An appeal shall stay all proceedings in furtherance of the action appealed from unless the city building
official certifies to the satisfaction of the board that by reason of facts stated in the certification a stay would
cause imminent peril to life or property.
(Code 1961, § 9.03.05; Ord. No. 90-14, § 1, 8-21-1990; Ord. No. 2011-50, § 4, 8-16-2011)
Sec. 12-65. Decision by board.
(a) The board of adjustment and appeals may, after public notice and public hearing, take action relative to
the continuance or discontinuance of dilapidated, substandard or unfit buildings or structures. In
particular, the board may:
Sec. 12-66. - Demolition of property.
(a) Whenever the required repair, vacation or demolition is not commenced or completed within the time
designated by the building official or board of adjustment or appeals, the building shall be posted.
(Code 1961, § 9.03.06; Ord No. 90-14, § 1, 8-21-1990; Ord. No. 2011-50, § 4, 8-16-2011)
Page 69 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 2.a.
Agenda Item: Consider authorizing the City Manager and staff to move forward with additional City Hall
project financing via issuing the remaining $4,000,000 of the 2016 Proposition 2 approved bonds and
approving Ordinance 2022-35 to amend the FY 2022 - 23 annual budget and the CIP budget.
Initiating Department/Presenter: Finance
Presenter:
Steve Ritter, Finance Director
Recommended Motion: Move to authorize the City Manager and staff to move forward with additional
City Hall project financing via issuing the remaining $4,000,000 of the 2016 Proposition 2 approved bond
and approving Ordinance 2022-35 to amend the FY 2022 - 23 annual budget and the CIP budget.
Strategic Initiative: Goal #4, Infrastructure - Ensure the quality of the City utilities, transportation and
physical structures so that the City’s core services can be provided in an effective and efficient manner.
Discussion: In 2016 a Bond issue Proposition was submitted to the voters of Huntsville and approved to
issue a maximum of $24,000,000 of General Obligation (GO) bonds for renovation and construction of
the City Service Center and City Hall. In August 2020 the City actually issued $19,115,000 of the GO
bonds and received a premium of $885,000 which, per Bond counsel, accounts for $20,000,000 of the
bonds being issued. Various circumstances (the COVID-19 pandemic, re-design of the facility) pushed
back construction readiness and pricing of the City Hall project. When design was sufficient to gain
pricing on the City Hall project the first cost estimate came in at around $27.4M. This was value
engineered down to $23.5M. The budget available for construction for the City Hall project is currently
around $17.5M. With the current valued engineered pricing on the construction at $23.5M and the
available budget at approximately $17.5M there is a need for an additional $6M to cover the cost.
Additional cuts to the project would result in a reduction to usability of the facility for the longer term
future.
If this agenda item is approved the $4,000,000 of additional GO bond debt would be issued in February
of 2023 with the first debt service payment being due in February of 2024. Best estimates we have at
this time for the annual debt service amount on the $4,000,000 is $270,000 to $300,000 which
calculates to about 1.2 cents to 1.33 cents on the tax rate. This will be accounted for in the FY 23-24
budget.
The budget amendments in this agenda item provide for $1,000,000 to come from both the General
Fund and the Utility Fund to be added to the budget of the project.
The Finance Committee reviewed the proposal at a meeting in October.
Page 70 of 113
Previous Council Action: The Council held a couple of workshops discussing this topic in September and
October of this year.
Financial Implications: Financial implications are explained in detail in the Discussion section.
Approvals:
Aron Kulhavy
Kristy Doll
Associated Information:
1. ORDINANCE 2022-35 - Budget Amendments 11.01.22 council meeting
2. Exhibit A 11-1-22 BAs Council - Sheet1
Page 71 of 113
ORDINANCE NO. 2022-35
AN ORDINANCE OF THE CITY OF HUNTSVILLE, TEXAS, AMENDING THE 2022-
2023 ANNUAL BUDGET AND CAPITAL IMPROVEMENTS PROJECTS (CIP)
BUDGETS, ORDINANCE NO. 2022-24 TO AMEND ADOPTED EXPENDITURES OF
THE BUDGET; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the 2022-2023 Annual Budget and CIP Budgets were adopted by Ordinance 2022-24 on
September 20, 2022;
WHEREAS, various unforeseen circumstances affecting the City have presented themselves during the
course of the fiscal year;
WHEREAS, the City Council considered the circumstances independently, deliberating appropriately on
the associated revenues and expenditures and the overall impact on the general financial status of the City;
WHEREAS, pursuant to the laws of the State of Texas and the City Charter of the City of Huntsville,
Texas, the City Council has determined that it will be beneficial and advantageous to the citizens of the
City of Huntsville to amend the annual budget for fiscal year 2022 – 2023 and the Capital Improvements
Projects (CIP) budget as set forth herein; and
WHEREAS, this ordinance combines the independent Council actions into one budget amendment
document;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, TEXAS, that:
Section 1. The findings set forth above are incorporated into the body of this ordinance.
Section 2. The annual budget for fiscal year 2022 – 2023 is hereby amended to include the expenditures
and revenues in Exhibit “A” and the Capital Improvements Projects budget is hereby amended to include
the expenditures described in Exhibit “A” attached hereto and made a part of this ordinance as if set out
verbatim herein.
Section 3. All ordinances of the City in conflict with the provisions of this ordinance are hereby repealed,
and all other ordinances of the City not in conflict with the provisions of this ordinance shall remain in full
force and effect.
Section 4. Should any section, portion, sentence, clause or phrase of this ordinance be declared
unconstitutional or invalid for any reason, it shall not invalidate or impair the force or effect of any other
section or portion of this ordinance.
Section 5. The necessity for amending the budget for the fiscal year 2022 – 2023 and Capital Improvements
Projects, as required by the laws of the State of Texas, requires that this ordinance shall take effect
immediately from and after its passage, as the law in such cases provides.
Section 6. This ordinance shall take effect immediately after its passage.
PASSED AND APPROVED on this the 1st day of November 2022.
THE CITY OF HUNTSVILLE, TEXAS
__________________________________
Andy Brauninger, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ _____________________________________
Kristy Doll, City Secretary Leonard Schneider, City Attorney
Page 72 of 113
Budget Amendments FY 22-23
Council - November 1, 2022
Exhibit A Increase:City Hall CIP ($2,000,000)
General Fund - Unallocated Reserves ($(1,000,000)
Utility Fund - Unallocated Reserves ($(1,000,000)
Explanation:
In 2016 a Bond issue Proposition was submitted to the voters of
Huntsville and approved to issue a maximum of $24,000,000 of
General Obligation (GO) bonds for renovation and construction
of the City Service Center and City Hall. In August 2020 the
City actually issued $19,115,000 of the GO bonds and received
a premium of $885,000 which, per Bond counsel, accounts for
$20,000,000 of the bonds being issued. Various circumstances
(the COVID-19 pandemic, re-design of the facility) pushed back
construction readiness and pricing of the City Hall project.
When design was sufficient to gain pricing on the City Hall
project the first cost estimate came in at around $27.4M. This
was value engineered down to $23.5M. The budget available
for construction for the City Hall project is currently around
$17.5M. With the current valued engineered pricing on the
construction at $23.5M and the available budget at
approximately $17.5M there is a need for an additional $6M to
cover the cost. Additional cuts to the cost would result in a
reduction to usability of the facility for the longer term future.
These budget amendments provide for $2,000,000 of the
$6,000,000 needed to move forward with construction. Based
on current (unaudited) estimates of September 30, 2022
Unallocated Reserve balances for the General Fund and the
Utility Fund and budgeted activity for FY 2022 - 2023 the use of
$1,000,000 from each of the Funds would cause the General
Fund to go below the required $7.7M by about $350,000 and
cause the Utility Fund to drop to about $450,000 above its
required $6,750,000 amount.
Page 73 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 2.b.
Agenda Item: Consider Resolution No. 2022-29 to approve the retention of the law firms Mckool
Smith, P.C., Ashcroft Sutton Reyes, LLC and Korein Tillery LLC to represent the City in litigation against
Netflix, Inc., Hulu LLC, Disney DTC LLC and other video service providers.
Initiating Department/Presenter: City Attorney
Presenter:
Leonard Schneider, City Attorney
Recommended Motion: Move to approve Resolution No. 2022 - 29 to approve the retention of the law
firms Mckool Smith, P.C., Ashcroft Sutton Reyes, LLC and Korein Tillery LLC to represent the City in
litigation against Netflix, Inc., Hulu LLC, Disney DTC LLC and other video service providers.
Strategic Initiative: Goal #6, Finance - Provide a sustainable, efficient and fiscally sound government
through conservative fiscal practices and resource management.
Discussion: The Council was previously advised about current litigation by over 20 Texas cities
against Netflix, Inc., Hulu LLC, Disney DTC LLC, and other video service providers (“VSPs”) as
determined for non-payment of franchise fees as required in the Texas Video Service Providers Act,
Texas Utilities Code Sec. 66 and the Council determined to go forward in joining this litigation. The
attached resolution is prepared and presented to meet the requirements of Subchapter C of Chapter
2254 of the Texas Government Code, which requires that a political subdivision of the State of
Texas, including the City, may enter into a contingent fee contract for legal services only after: (i) the
governing body of the political subdivision has provided written notice to the public stating certain
provisions enumerated within Chapter 2254; (ii) the governing body of the political subdivision
approved such contract in an open meeting called, in part or in whole, for the purposes of
considering such contract; and (iii) the governing body of the political subdivision stated in writing
certain findings made by the governing body upon the approval of such contract. Attached to this
agenda item is the Resolution, the Public Notice that is required to be published and was published,
and the agreement to provide legal services. After this resolution is passed, the agreement for legal
services is sent to the Office of the Attorney General.
Previous Council Action: At the September 20, 2022 City Council meting, Ctiy Council authorized staff to
recommend and retain McKool Smith Law Firm to represent the City in litigation against Disney DTC,
LLC, Hulu, LLC and Netflix, Inc.
Financial Implications: None at this time/Share of expenses such as depositions, filing fees.
Approvals:
Leonard Schneider
Kristy Doll
Page 74 of 113
Aron Kulhavy
Associated Information:
1. Resolution 2022-29
2. HUNTSVILLE Public Notice per Govt Code Ch. 2254
3. HUNTSVILLE Contract
Page 75 of 113
1
RESOLUTION NO. 2022-29
WHEREAS,the City intends to pursue claims for monetary damages, declaratory relief,
and other legal remedies (“Damages”) against Netflix, Inc., Hulu LLC, Disney DTC LLC, and
other video service providers (“VSPs”) as determined for non-payment of franchise fees as
required in the Texas Video Service Providers Act, Texas Utilities Code Sec. 66 (the “Litigation”);
and
WHEREAS,the City’s desired outcome in the Litigation is to recover from the VSPs
Damages owed to the City for failure to pay franchise fees and obtain an order requiring the VSPs
to pay the franchise fees going forward, in addition to other relief allowed under the law; and
WHEREAS,the VSPs deliver video programming to their customers via broadband
internet through wireline facilities located at least partially in the public right of way; and
WHEREAS,the VSPs do not pay franchise fees to the City as required in section 66.005
of the Texas Utilities Code; and
WHEREAS,the City has a substantial need of the legal services of counsel to represent
it in the Litigation; and
WHEREAS,the City requires legal counsel that specialize in complex litigation and are
highly knowledgeable and experienced in the legal issues surrounding the non-payment of
franchise fees by the VSPs; and
WHEREAS,the City now desires to enter into a contingent fee contract (“Contract”) for
legal services with McKool Smith, P.C., Ashcroft Sutton Reyes LLC, and Korein Tillery LLC
(“Counselors”) to represent the City in the Litigation; and
WHEREAS,Subchapter C of Chapter 2254 of the Texas Government Code (“Chapter
2254”) requires that a political subdivision of the State of Texas, including the City, may enter into
a contingent fee contract for legal services only after: (i) the governing body of the political
subdivision has provided written notice to the public stating certain provisions enumerated within
Chapter 2254; (ii) the governing body of the political subdivision approved such contract in an
open meeting called, in part or in whole, for the purposes of considering such contract; and (iii)
the governing body of the political subdivision stated in writing certain findings made by the
governing body upon the approval of such contract; and
WHEREAS,before the contingent fee contract for legal services is effective and
enforceable, the City must receive approval of the Contract by the Office of the Attorney General
of Texas or the Contract is otherwise allowed under Tex. Gov’t Code Ch.2254, as amended; and
WHEREAS,the City has caused notice of this resolution, this meeting, and certain
provisions enumerated within Chapter 2254 to be provided to the public in accordance with the
Texas Open Meetings Act and Chapter 2254; and
Page 76 of 113
2
WHEREAS,the meeting at which this resolution is being considered is an open meeting
called, in part or in whole, for the purpose of considering: (i) the City’s need for legal counsel to
represent it in the Litigation; (ii) terms of the Contract; (iii) the competence, qualifications, and
experience of the Counselors; and (iv) the reasons that the Contract is in the best interest of the
City and complies with Chapter 2254; and
WHEREAS,the City Council hereby finds and determines that the adoption of this
resolution is in the best interests of the residents of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, TEXAS:
SECTION 1.That the recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this resolution for all purposes and are adopted as a part of
the judgment and findings of the City Council.
SECTION 2.That the City Council hereby finds that: (i) there is a substantial need for the legal
services to be provided in the Litigation; (ii) the legal services to be provided in the Litigation
cannot adequately be performed by the attorneys and supporting personnel currently employed by
the City; (iii) the legal services to be provided in the Litigation cannot reasonably be obtained from
attorneys in private practice under a contract providing only for the payment of hourly fees, without
regard to the outcome of the matter, because of the nature of the Litigation and without imposing
an unnecessary cost and burden on the City’s finances; and (iv) the relationship between the City
or the City Council and the Counselors is not improper and would not appear improper to a
reasonable person.
SECTION 3.That based on the findings by the City Council described above, the City Council
hereby authorizes the City Manager to execute a legal services contract with McKool Smith, P.C.,
Ashcroft Sutton Reyes LLC, and Korein Tillery LLC, approved as to form by the City Attorney,
effective only upon approval by the Office of the Attorney General of Texas or as otherwise
allowed under Tex. Gov’t Code Ch.2254, as amended.
SECTION 4.That it is officially found, determined, and declared that the meeting at which this
resolution is adopted was open to the public and public notice of the time, place, and subject matter
of the public business to be considered at such meeting, including this resolution, was given, all as
required by Chapter 551 as amended, Texas Government Code.
SECTION 5.That the City will pay the Counselors a contingency fee and expenses in accordance
with the rates in Attachment A to this resolution and contingent upon the recovery, if any, by the
City in the Litigation.
SECTION 6.That this Resolution shall take effect immediately from and after its passage in
accordance with the provisions of the Charter of the City of Huntsville, and it is accordingly so
resolved.
PASSED AND APPROVED on this the _______ day of _____________________, 2022.
Page 77 of 113
3
THE CITY OF HUNTSVILLE, TEXAS
_________________________________
Andy Brauninger, Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ____________________________
Kristy Doll, City Secretary Leonard Schneider, City Attorney
Page 78 of 113
4
ATTACHMENT A
The fees for legal services provided by the Counselors in connection with the Litigation are
contingent upon the recovery by the City of Damages in the Litigation and will be paid out of such
recovery, if any, as follows:
If the City obtains a recovery and collection on behalf of the City before a trial or appeal, the
Counselors will receive attorneys’ fees in the amount of Thirty Percent (30%) of the gross
recovery. If recovery for the City occurs after (1) the beginning of trial (at the beginning of opening
argument), or (2) upon appeal of any judgment, the Counselors will instead receive attorneys’ fees
in the amount of the Thirty-Three and One-Third (33 1/3%).
The Counselors will advance all costs associated with the Litigation. The City agrees to reimburse
the Counselors for all reasonable costs out of its share of the gross recovery.
Page 79 of 113
1
PUBLIC NOTICE
In association with Resolution No. 2022-29
This notice is given pursuant to Tex. Gov’t Code § 2254.1036.
A.The City of Huntsville, Texas (“City”) intends to pursue claims for
monetary damages, declaratory relief, and other legal remedies
(“Damages”) against Netflix, Inc., Hulu LLC, Disney DTC LLC, and
other video service providers (“VSPs”) as determined for non-
payment of franchise fees as set forth under the Texas Video Services
Providers Act, Tex. Util. Code Sec. 66 (the “Litigation”). The City’s
desired outcome in pursuing the Litigation is to recover from the VSPs
Damages owed to the City for failure to pay franchise fees and obtain
an order requiring the VSPs to pay the franchise fees going forward,
in addition to other relief allowed under the law. Therefore, there is
substantial need for the legal services.
B.The City wishes to engage the following three law firms
(“Counselors”): McKool Smith, P.C., Ashcroft Sutton Reyes LLC, and
Korein Tillery LLC. Details regarding their competence,
qualifications and experience are attached at Exhibit 1.
C.The relationship with the three Counselors would span from the time
of engaging them in the Litigation until it is completed. The City has
had no prior relationship with the McKool Smith, Korein Tillery or
Ashcroft Sutton Reyes firms.
D.The legal services for which the Counselors are retained cannot be
adequately performed by the attorneys and supporting personnel of the
City. The City’s budget is strained and has limited resources for its
legal department. The City Attorney’s office is engaged in hundreds
of transactional matters and in overseeing, managing and litigating
hundreds of matters. In addition, the investigation, research, and
litigation of the claims will require the expenditure of large sums of
money and require the work of numerous attorneys, paralegals and
others who are familiar with the VSPs’ wrongful actions and/or
inactions. Thus, the City does not have the resources it believes will be
necessary to engage in protracted, time-consuming, and expensive
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litigation.
E.The legal services for which the law firms are retained cannot
reasonably be obtained from attorneys in private practice under a
contract providing for the payment of hourly fees without regard to the
outcome of the matter for the following reasons:
(1)TIME: It is not economically feasible for the City to pay outside
counsel on an hourly basis for what the City anticipates will
require significant hours of attorney time and significant costs
advanced in pursing the relief the City expects to achieve.
The issues involved in the City’s claim have not been
adjudicated and determined since the Texas Video Services
Providers Act was passed in 2005. As an unsettled matter of
law, the VSPs will likely aggressively oppose all aspects of the
Litigation. It will require the skill of attorneys who have
familiarity with complex litigation. It is the City’s experience
that attorneys with this familiarity and experience have high
billable hourly rates and are not receptive to taking on
contingency fee cases such as this where recovery is not certain;
doing so would preclude them from taking other cases on an
hourly paid basis.
(2)COMPLEXITY/DAMAGES: Besides legal issues, determining
damages may be complicated to calculate. Damages will be
based, in part, on: 1) gross receipts of each VSP, with data going
back thirteen years to 2007, and 2) individual subscriptions to
residents of the City. It is unclear in what format the data is kept
to determine gross receipts, but it is anticipated to be complex
and difficult to understand. It will require experienced lawyers
with the assistance of experts to decipher the data and determine
a mathematical or formulaic calculation for each defendant for
receipts generated over 13-plus years. Because there are at least
three distinct defendants, it is likely that they have different
business practices and ways of maintaining their data.
(3)EXPENSES: Finally, the Counselors the City requests to
employ have agreed to advance expenses in the case, which are
likely to be significant given the need for experts in several
fields and the general high expense of litigation. These expenses
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include but are not limited to: filing and service fees; costs of
investigative services; travel expenses; deposition expenses and
court reporter fees; outside trial services providers; expert
witness fees; trial equipment rental and operation fees;
preparation of exhibits and graphics; the costs of briefs and
transcripts on appeal; and miscellaneous copying, postage,
shipping, and courier expenses.
F.The advance of expenses is risky because, under the terms of the legal
services agreement, expenses are reimbursed only out of any recovery.
Because the City has limited funds to advance for litigation expenses,
it is especially in the City’s interest, and that of its residents, to have
attorneys advance those expenses and only be reimbursed by the City
out of any recovery if the City is successful. Entering a contingent fee
contract for legal services is in the best interest of the residents of the
City because it will allow the City to recoup franchise fees owed the
City since approximately 2007 and obtain a declaratory judgment
ordering the VSPs to pay the fees in the future. Franchise fees
recovered in the Litigation will be used to support other essential City
services. Retaining counsel who will advance expenses in the litigation
will allow the City to use those funds instead to support necessary city
services.
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EXHIBIT 1
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McKOOL SMITH P.C.
McKool Smith was founded in 1991 with offices in Dallas, Austin, Houston, Marshall, Los
Angeles, and New York. It represents clients in complex commercial litigation, insurance
recovery, intellectual property, bankruptcy, and white-collar defense matters.
In the past 15 years, the firm has secured 12 nine-figure jury verdicts and 15 eight-figure jury
verdicts. It has also won more VerdictSearch and The National Law Journal “Top 100 Verdicts”
than any other law firm in the country. Recent recognitions include:
Recognized by BTI Consulting as one of ten “Awesome Opponents,” the firms most feared
by senior in-house counsel, in its annual Litigation Outlook Report (2019-2020).
Ranked a “Tier 1” law firm for bankruptcy, commercial, securities, banking & finance,
intellectual property, patent, real estate, and regulatory enforcement litigation by U.S.
News & World Report - Best Law Counselors (2020).
Ranked as a leading firm for Commercial Litigation, Insurance Policyholder Litigation,
and Securities Plaintiff Litigation by Chambers USA (2020).
Ranked as a “Highly Recommended” Litigation Firm and Plaintiff Firm by Benchmark
Litigation (2020).
Awarded “Insurance Group of the Year” by Law360 (2020).
Recognized as a “Texas Powerhouse Firm” by Law360 (2019).
Awarded “Trial Group of the Year” by Law360 (2018).
Steven Wolens is a principal at McKool Smith. He has practiced law since 1976. He received a
B.A. with distinction from Stanford University in 1973, and a J.D. from Southern Methodist
University Law School in 1976. He represents clients in complex class-action claims and
commercial litigation. He is peer-reviewed as an AV rated lawyer by Martindale Hubbell.
In certifying a class action on behalf of 173 Texas cities in City of San Antonio v Hotels.com, the
district court found “With regard to adequacy of counsel, the Court must determine whether class
counsel has the qualifications, experience and training to litigate the case to its conclusion…The
lead attorneys in this case are Steven Wolens and Gary Cruciani. Both attorneys have a wealth of
experience in complex litigation, including substantial class action experience.” City of San
Antonio v. Hotels.com, No. SA-06-CA-381-OG, 2008 WL 2486043, at *8 (W.D. Tex. May 27,
2008).
For 24 years, he served as a member of the Texas Legislature and authored landmark legislation
covering partnerships and limited liability corporations, ethics reforms, antitrust laws, and
electric deregulation. Texas Monthly magazine named him one of the “Ten Best Legislator” in
the state on six separate occasions. He currently serves on the Texas Ethics Commission, which
he chaired from 2017–2019.
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ASHCROFT SUTTON REYES LLC
Ashcroft Sutton Reyes LLC (d/b/a/ Ashcroft Law Firm) was founded in 2008 by former U.S.
Attorney General, Governor, and Senator John Ashcroft. Together with the select group of
seasoned, respected, and experienced senior executives he recruited to join him—many of whom
helped to lead the U.S. Department of Justice during a significant time in our nation’s history
following the attacks on 9/11—the Ashcroft Firm has earned a reputation for integrity and a track
record for accelerating successful resolutions of even the most complex matters.
In addition to General Ashcroft, the Ashcroft Firm is comprised of the former U.S. Attorney for
the Western District of Texas, former Deputy Assistant to the President of the United States,
former member of the Executive Administration of the Texas Attorney General's Office, former
Assistant United States Attorney, former Deputy Associate Attorney General and Chief of Staff in
the U.S. Department of Justice, former General Counsel and Assistant General Counsel to the
Special Inspector General for Iraq Reconstruction, former Assistant General Counsel to the
Governor of Texas, and several other highly skilled and experienced attorneys, all of whom know
and understand government.
The Ashcroft Firm’s attorneys are litigators who have led multi-plaintiff lawsuits against
formidable foes, like the federal government, other states, and local government entities. Ashcroft
attorneys have appeared in federal and state courts throughout the United States and
internationally, ranging from the Supreme Court of the United States to municipal courts in Texas.
Additionally, the Ashcroft Firm provides legal and consulting services to world-leading clients,
including Fortune 500, nation states, elected officials, multi-national corporations, and corporate
executives. The Ashcroft Firm regularly leads large entities (government and private) through a
large range of regulatory matters including issues involving the FCPA, FATCA, OFAC, SOX,
ITAR, FCA, the FAR and the Bank Secrecy Act (Anti- Money Laundering).
Ashcroft attorneys have tried countless civil and criminal cases to verdict in state and federal courts
throughout the country. The legal experience and efforts of Ashcroft attorneys has resulted in
governmental entities recovering billions for contractual breaches, theft, tax evasion, waste, fraud,
and abuse.
KOREIN TILLERY LLC
Korein Tillery — based in Chicago and St. Louis — is one of the country’s most successful
plaintiffs’ complex-litigation firms, representing a broad array of clients in high-stakes lawsuits
and delivering over $18 billion in verdicts and settlements over the last 16 years. The National
Law Journal has consistently deemed Korein Tillery to be one of the country’s top plaintiffs’ firms
by naming it to its “Plaintiffs’ Hot List” seven times in the past 16 years. In 2014 and 2015, Korein
Tillery was named by the NLJ as a member of its top 50 Elite Trial Lawyers.
Since 2007, Korein Tillery has represented Missouri municipalities in litigation that sought to
recover unpaid license taxes. In suits against wireless and wireline carriers, Korein Tillery
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recovered hundreds of millions of dollars of license tax revenues—both retrospectively and
prospectively—for more than 350 cities throughout Missouri. Korein Tillery has recovered more
than $1 billion for Missouri municipalities. As a result of their work in these cases, the Missouri
Lawyers Weekly recognized Korein Tillery partners with awards in the “largest plaintiff wins”
category in 2007, 2009, 2010, 2015, and 2017. On two separate occasions corporate defendants
have secured state legislation banning the litigation. In both instances Korein Tillery has
successfully challenged the legislation as unconstitutional in the Supreme Court of Missouri. See,
e.g., State ex rel. Collector of Winchester v. Jamison, 357 S.W.3d 589 (Mo. 2012).
Steven Berezney is a partner in Korein Tillery’s St. Louis office. He received his J.D. from the
University of Illinois in 2003, where he served as Editor-in-Chief of the Law Review. After
graduation, Mr. Berezney served as a judicial law clerk for Judge Laura Denvir Stith of the
Supreme Court of Missouri.
While in private practice at Husch Blackwell, Mr. Berezney was part of the team that won a $1
billion judgment that, at the time, was the fourth largest patent infringement jury verdict in U.S.
history, according to Bloomberg. Monsanto Co. v. E.I. DuPont de Nemours & Co., 4:09-cv-00686-
ERW (E.D. Mo. Aug. 1, 2012). At Korein Tillery, Mr. Berezney managed and litigated all aspects
of multi-billion-dollar cases in federal trial and appellate courts against Wall Street investment
banks arising from misrepresentations made about residential mortgage-backed securities. Mr.
Berezney played a significant role in obtaining over $5 billion in recoveries. Mr. Berezney has
also been part of the team litigating Sherman Act price fixing conspiracy claims raised against 16
investment bank defendants in In re: Foreign Exchange Benchmark Rates Antitrust Litigation, No.
13-cv-07789-LGS (S.D.N.Y.), resulting in $2.3 billion in recoveries to date.
Garrett Broshuis received his J.D. from Saint Louis University, where he graduated valedictorian
and served as Editor-in-Chief of the Law Journal. Before law school, Mr. Broshuis played six years
as a pitcher in the San Francisco Giants’ organization, working at all levels of minor league
baseball.
Since joining Korein Tillery, Mr. Broshuis has represented minor league baseball players in a
novel case seeking to increase the players’ pay, which recently had its class action status affirmed
and expanded by the Ninth Circuit Court of Appeals. Senne v. Kansas City Royals Baseball Corp.,
934 F.3d 918, 922 (9th Cir. 2019). He also represents classes of Missouri municipalities in several
actions against Fortune 500 and other large companies.
Mr. Berezney and Mr. Broshuis are both responsible for litigating the first known filed lawsuit (in
Missouri) seeking to require streaming companies to pay franchise fees to municipalities. They are
litigating similar cases in Indiana and Georgia.
4862-0916-4809
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AGREEMENT FOR PROVIDING
LEGAL SERVICES TO CITY OF HUNTSVILLE
IN CONNECTION WITH RECOVERY OF FRANCHISE FEES
The City of Huntsville, Texas (“City”) and the law firms of McKool Smith, P.C., Korein
Tillery LLC, and Ashcroft Sutton Reyes LLC (collectively, “Counselors”) enter into this
agreement (“Contract”) to provide legal services on behalf of the City, its elected or appointed
officials and employees with such services regarding the matter below. The City and Counselors
shall collectively be referred to as the “Parties.”
1. PROFESSIONAL LEGAL SERVICES
A. Counselors are hereby retained to provide legal representation to the City in
connection with litigation seeking damages, declaratory relief, attorneys’ fees, interest and other
appropriate relief from Netflix, Inc., Hulu, LLC, Disney DTC LLC and other video service
providers (“Defendants”) as may be decided for the non-payment of franchise fees (“Franchise
Fees,” as referenced in Section 66.005, of the Texas Utilities Code, as amended) (collectively, the
“Litigation”). The services shall be referred to as “Professional Legal Services.”
B. Counselors hereby agree to perform the Professional Legal Services necessary, in
accordance with the terms of this Contract. This Contract shall be administered on behalf of City
by its City Attorney. At the request of the City Attorney, Counselors will provide case status
reports, and will participate from time to time in both open and closed session briefings of the City
Council.
2. PAYMENT
For the performance of Professional Legal Services and advance of Costs by Counselors,
City agrees to pay Counselors on a contingency fee and reimburse costs out of any recovery as
detailed on Exhibit A which is incorporated herein.
3. RECITALS PURSUANT TO TEX. GOV’T CODE CH. 2254
Counselors’ further duties in compliance with Tex. Gov’t Code Ch. 2254, as amended, are
set out in Exhibit A.
4. TERM
The term of this Contract shall begin 90 days after it is received by the Office of the
Attorney General of Texas (“OAG”) pursuant to Tex. Gov’t Code Ch. 2254, as amended, unless
it is not approved by that time. Once it is either approved by the OAG, or 90 days have passed, the
Contract shall continue until completion of the Litigation or terminated as provided herein. All
services under this Contract are to be completed timely and in the highest professional manner.
5. TERMINATION
A. The City Attorney may terminate the performance of services at any time, with or
without cause by giving at least ten (10) days written notice to Counselors. The notice must be
delivered by email and by certified mail with return receipt for delivery to the City.
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1. Termination Without Cause: (i) if City terminates this Contract without
cause, Counselors shall be paid for the reasonable value of the legal services provided plus
reimbursement for all Costs incurred at the time of termination; (ii) if the City resolves the
Litigation through final settlement, award, or judgment, Counselors shall be paid Attorneys’
Fees pursuant to Exhibit A at the time a Recovery.
2. Termination with Cause: If Counselors fail to satisfactorily perform any
material obligation under this Contract, such failure constitutes a Default. If Counselors
fail to satisfactorily cure a Default within thirty (30) calendar days of receiving written
notice from the City specifying the nature of the Default, the City may terminate this
Contract for cause, in which case compensation and Costs due Counselors, if any, shall be
calculated considering the particular facts and circumstances involved in such termination,
and paid only out of any Recovery.
B. Counselors may withdraw as permitted under the Rules of Professional Conduct of
the State Bar of Texas. The circumstances under which withdrawal is permitted
include the following: (a) the City consents, (b) the City’s conduct renders it
unreasonably difficult for Counselors to carry out the employment effectively, (c)
the City fails to pay Attorneys’ Fees or Costs as required by this Contract; or (d)
Counselors determine it is not economically feasible for Counselors to perform the
Services. If Counselors properly withdraw from representing the City pursuant to
subparagraph (a)–(c) above or because it is required to do so by the Rules of
Professional Conduct, the City agrees to compensate Counselors for the reasonable
value of the legal services provided, plus reimbursement for Costs. The reasonable
value of legal services shall not exceed thirty-three and one-third percent (33.33%)
of the City’s total recovery or, if reimbursed on an hourly basis, shall not exceed the
hourly rates provided in Exhibit A, Section 8.8. In such a situation, both Fees and
reimbursement of Costs will be paid by City to Counselors at the time a Recovery is
collected by the City. If Counselors withdraw from representing City pursuant to
subparagraph (d) above, Attorneys’ Fees and Costs due Counselors, if any, shall be
calculated considering the particular facts and circumstances involved in such
withdrawal, and only out of any Recovery. Any disputes regarding the reasonable
value of such legal services or Costs shall be mediated by the Judicial Arbitration
and Mediation Services (JAMS).
6. VENUE AND GOVERNING LAW
This Contract is made subject to the Charter and ordinances of the City, as amended,
and all applicable laws of the State of Texas. This Contract is performable in Dallas County,
Texas, and venue for any legal action under this Contract shall lie in Dallas County, Texas;
and in construing this Contract, the laws and court decisions of the State. Any disputes
regarding the Contract including the reasonable value of legal services or Costs shall be
mediated by the Judicial Arbitration and Mediation Services (JAMS) before any litigation
is undertaken.
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7. NO REPRESENTATION OF ANY ADVERSE PARTY
Counselors acknowledge that they are not currently involved in any litigation in which it
represents a party who is adverse to the City, and Counselors agree that they will not undertake
any litigation adverse to the City or to an employee or officer of the City, except with prior
disclosure to and written consent by the City Attorney.
8. CONFLICTS
The City and Counselors acknowledge that other Texas cities and individual government
entities may seek to become named parties in the Litigation and be represented by Counselors. The
City recognizes that there may be potential conflicts or actual conflicts of interest if Counselors
represents other cities in litigation like the Litigation. The City understands that it would be to its
benefit for other parties to become named parties as it may enhance the case and lower the City’s
expenses. Accordingly, the City has conferred with the City Attorney and has determined that it is
in its own best interests to waive all potential or actual conflicts of interest which may occur as a
result of Counselors representing other government entities in this or similar litigation. The City
therefore waives all such potential or actual conflicts of interest which may occur because of the
Counselors representing other government entities in this Litigation or similar litigation.
9. REPRESENTATION OF RELATED INTERESTS
Counselors shall have the right to represent other municipalities, or governmental
subdivisions in other video service provider franchise fee actions or similar litigation without the
consent of the City, subject to the Texas Disciplinary Rules of Professional Conduct (“Rules of
Professional Conduct”) relating to conflicts of interest.
The City acknowledges and agrees that it is possible that disagreements and differences
may arise between and among Client Group in the future. The City further acknowledges that in
the event such differences do arise, Counselors cannot assist or be involved in their resolution, and
they agree not to seek Counselors’ involvement or assistance in resolving any differences.
If the City and any other Client Group member cannot resolve their differences and
Counselors determine that those differences create a conflict of interest that would materially limit
their ability to provide competent and diligent representation to each Client Group member in this
Litigation, then the City agrees that Counselors may withdraw for cause from representing City as
necessary to resolve the conflict of interest. The City further agrees that Counselors may, at their
election, continue to represent other Client Group members after such withdrawal.
The City acknowledges that one of the necessary consequences of joint representation is
the sharing of confidential information concerning the subject matter of the representation where
the disclosure is for the benefit of the client. Counselors will treat as confidential and not disclose
confidential communications between Counselors and the City outside the Client Group. Except
for disclosure to the Client Group, all other confidential information about this Litigation provided
by the City will be protected, except to the extent required by applicable rules of professional
conduct or order of a court with proper jurisdiction. The City agrees that no such communication
or any other confidential information concerning this Litigation will be disclosed outside the Client
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Group without the informed written consent of the Client Group member that made the
communication or disclosed the information. The City further agrees that material
communications or information that it provides to Counselors, including confidential
communications and information, Counselors may share with the other Client Group members.
The City acknowledges and agrees that if Counselors no longer represent it in this
Litigation as a result of Counselors’ withdrawal because of a conflict of interest or other cause,
Counselors may nevertheless use any confidential information they have concerning this Litigation
to the advantage of the remaining Client Group members.
10. CONFLICT OF INTEREST
It is understood and agreed that the Counselors will notify the City in writing of the
potential for any conflict of interest in any legal matter or case within 24 hours of its discovery.
11. NOTICES
Except as otherwise provided in Section 14, any notice, payment, statement, or demand
required or permitted to be given under this Contract by either party to the other may be affected
by email and personal delivery in writing or by mail, postage prepaid. Mailed notices shall be
addressed to the parties at the addresses appearing below, but each party may change its address
by written notice in accordance with this section. Mailed notices shall be deemed communicated
as of three (3) days after mailing.
If intended for City, to:
Leonard Schneider, City Attorney
City of Huntsville, Texas
2261 Northpark Dr., Suite 445
Kingwood, Texas 77339
Email: lschneider@lilesparker.com
If intended for Counselors, to:
Steven Wolens
McKool Smith
300 Crescent Ct., Ste. 1500
Dallas, TX 75201
Email: swolens@mckoolsmith.com
Steven M. Berezney
Korein Tillery LLC
505 N. 7th Street, Ste. 3600
St. Louis, MO 63101
Email: SBerezney@KoreinTillery.com
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Austin R. Nimocks
Ashcroft Sutton Reyes LLC
919 Congress Ave., Ste. 1325
Austin, TX 78701
Email: animocks@ashcroftlawfirm.com
12. LEGAL SERVICES SPECIFICALLY EXCLUDED
Counselors do not agree to provide any representation beyond that described in Section
1.A. above. If the City wishes to retain Counselors to provide any legal services not provided under
this Contract, a separate written agreement between Counselors and the City will be required.
13. AUTHORITY OF COUNSELORS
Counselors may execute, at his/her option, all reasonable and necessary court documents
connected with the handling of the Litigation. If the City Attorney gives Counselors sufficient
notice of documents he/she wishes to jointly sign with Counselors, Counselors will undertake good
faith efforts to accomplish same.
14. ATTORNEYS’ LIEN
Counselors will have a lien to the fullest extent of Texas law for attorneys’ fees and costs
on all claims and causes of action that are the subject of its representation of the City under this
Agreement and on all proceeds of any recovery collected (whether by settlement, Court judgment,
or otherwise).
15. COMMUNICATIONS
The City designates Leonard Schneider, the City Attorney, or any other person designated
by the City Attorney as the authorized representative of the City to direct Counselors.
Correspondence will be forwarded to him at lschneider@lilesparker.com. Counselors designate
Steven Wolens to be the primary individual to communicate with the City regarding the subject
matter of Counselor’s representation of the City under this Agreement. Correspondence will be
forwarded to him at swolens@mckoolsmith.com.
16. NO ASSIGNMENT
Counselors shall not sell, assign, transfer, or convey this Contract, in whole or in part,
without the prior written consent of the City Attorney.
17. COUNTERPARTS
This Contract may be executed in any number of counterparts, each of which shall be
deemed an original and constitute one and the same instrument. If this Contract is executed in
counterparts, then it shall become fully executed only as of the execution of the last such
counterpart called for by the terms of this Contract to be executed. Any signature delivered by a
party by facsimile or electronic transmission (including email transmission of a PDF image) shall
be deemed to be an original signature hereto.
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18. CAPTIONS
The captions to the various clauses of this Contract are for informational purposes only and
shall not alter the substance of the terms and conditions of this Contract.
19. ENTIRE AGREEMENT; NO ORAL MODIFICATIONS
This Contract (with all referenced Exhibits, attachments, and provisions incorporated by
reference) embodies the entire agreement of both parties, superseding all oral or written previous
and contemporary agreements between the parties relating to matters set forth in this Contract.
Except as otherwise provided elsewhere in this Contract, this Contract cannot be modified without
written supplemental agreement executed by both parties.
20. MISCELLANEOUS
City recognizes that no result has been guaranteed by Counselors, and that this Contract is
not based upon any such promise or anticipated result. City further acknowledges that it is
exclusively responsible for all personal liability, or potential liability, awarded against it by a court
because of a claim, counterclaim, protest suit, or otherwise, and that by undertaking to represent
City pursuant to this Contract, Counselors assume none of City’s joint and/or individual liability.
21. AUTHORITY TO SETTLE LITIGATION
City does not relinquish authority or responsibility through this Contract to settle the
Litigation. City has the sole authority to settle the Litigation on behalf of the City and its citizens,
and Counselors shall inform the City Attorney of all settlement offers.
22. APPROVAL BY THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS
The Parties agree that this Contract is not effective until approved by the Office of the
Attorney General of Texas (“OAG”) or as otherwise allowed under Tex. Gov’t Code Ch. 2254, as
amended.
23. COMPLIANCE WITH CERTAIN STATE LAW
1.Anti-Boycott of Israel. Each Firm certifies that it is not currently engaged
in, and agrees for the duration of this Agreement not to engage in, the boycott of Israel as
defined by Section 808.001 of the Texas Government Code.
2.Anti-Boycott of Energy Companies. Each Firm certifies that the Firm is not
currently engaged in, and agrees for the duration of this Agreement not to engage in, the
boycott of energy companies as defined by Section 809.001 of the Texas Government
Code.
3.Anti-Boycott of Firearm Entities or Firearm Trade Associations. Each
Firm certifies that the Firm does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association, or will not discriminate
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against a firearm entity or firearm trade association for the duration of this Agreement, as
defined by Section 2274.001 of the Texas Government Code.
4.Certification of No Business with Foreign Terrorist Organizations. For
purposes of Section 2252.152 of the Texas Government Code, Each Firm certifies that, at
the time of this Agreement neither Firm nor any wholly owned subsidiary, majority-owned
subsidiary, parent company or affiliate of Firm, is a company listed by the Texas
Comptroller of Public Accounts under Sections 2252.153 or 2270.0201 of the Texas
Government Code as a company known to have contracts with or provide supplies to a
foreign terrorist organization.
EXECUTED this the ______ day of ________________________, 2022.
COUNSELORS
MCKOOL SMITH, P.C.
__________________________________
Steven D. Wolens
KOREIN TILLERY, LLC
__________________________________
Steven M. Berezney
ASHCROFT SUTTON REYES LLC
__________________________________
Austin R. Nimocks
CITY OF HUNTSVILLE, TEXAS
__________________________________
______________, City Manager
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ATTEST:
____________________________________ __________________________________
_______________, City Secretary Date
APPROVED AS TO FORM & LEGALITY:
____________________________________
Leonard Schneider, City Attorney
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EXHIBIT A
COMPENSATION AND COSTS
1.Compensation (“Attorneys’ Fee(s)”).
The employment of Counselors will be on a contingency fee basis. Specifically, if the City
obtains a recovery and collection on behalf of the City before a trial or appeal, Counselors will
receive attorneys’ fees in the amount of Thirty Percent (30%) of the Gross Recovery. If recovery
for the City occurs after the beginning of trial (at the beginning of opening argument) or 2) upon
appeal of any judgment, Counselors will instead receive attorneys’ fees in the amount of the Thirty-
Three and One-third percent (33 1/3 %) (“Attorneys’ Fee(s)” or “Contingency Fee(s)”). This
Attorneys’ Fee is not set by law but is negotiable between the City and Counselors.
Counselors shall be entitled to such Contingency Fees regardless of whether the recoveries
are a result of an accounting, settlement, judgment, litigation, ordinance, legislation, voluntary
payment, credit, refund, adjustment, offset, reduction in future charges, protest suit, or some other
method or source. Counselors’ Contingent Fee shall be allocated among City and any other
participants in the recovery in proportion to the gross amount of that recovery by each participant.
City and Counselors acknowledge that the litigation may result in the payment of either or
both of Franchise Fees for periods before the effective date of any final court judgment, settlement
agreement, or other document establishing the right to a recovery (such effective date hereafter
referred to as the “Effective Date” and such Franchise Fees for periods before the Effective Date
hereafter referred to as “Historical Franchise Fees”) and Franchise Fees for periods on or after the
Effective Date (“Prospective Franchise Fees”).
City and Counselors also acknowledge that resolution of the Litigation might discount
Historical Franchise Fees for Prospective Franchise Fees. If the amount of Historical Franchise
Fees paid from a source by judgment, agreement, or otherwise is less than the sum of what that
source would have paid, in full, in Franchise Fees for all fiscal quarters preceding the Effective
Date (the “Benchmark Franchise Fees”), then Counselors shall be entitled to Attorneys’ Fees in
the amount of 33 1/3 % of the gross amount of that source’s payments of Prospective Franchise
Fees until the total Franchise Fees paid by that source equal the Historical Franchise Fees.
However, Counselors shall not, in any circumstance, collect from the City more than 33 1/3% of
the City’s total recovery.
The sole contingency upon which the City will pay Fees to Counselors is a recovery and
collection on behalf of the City, whether by settlement, court judgment, or otherwise.
2.Gross Recovery.
The term “Gross Recovery” shall include, without limitation, the then present value of any
monetary payments agreed or ordered to be made and the fair market value of any property or
services agreed or ordered to be made and the fair market value of any property or services agreed
or ordered to be transferred or rendered for the benefit of the City by the adverse parties to the
Litigation or their insurance carrier(s), whether by settlement, court judgment, or otherwise.
Page 95 of 113
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If payment of any part of the relief to the City will be in the form of property and services
(“In Kind”), the value of such property and services for purposes of calculating the Gross Recovery
shall be calculated based on the present value, as of the time of the settlement or final court
judgment, of the In Kind relief to be received thereafter. The Attorneys’ Fees for the value of the
In Kind relief shall be paid out of any initial lump-sum payment by the defendants. If the initial
lump sum payment is insufficient to pay the Attorneys’ Fees in full, the balance will be paid from
subsequent payments on the recovery before any distribution to the City.
If the Parties disagree with respect to the value of any In Kind relief, they will proceed as
follows: Within thirty (30) days each party will select an appraiser qualified to conduct an appraisal
of the value of the In Kind relief. Each Party’s selected appraiser will thereafter meet and confer.
If resolution of the dispute is not reached within sixty (60) days of the initial meet and confer, the
appraisers will select a third qualified appraiser within fifteen (15) days. The third appraiser’s
valuation will be final and binding on the Parties.
Notwithstanding the foregoing, if there is no monetary recovery and the City receives In
Kind relief, Attorneys’ Fees will be based on the value of the In Kind relief, which will be
determined through the mutual agreement of the Parties. If the Parties disagree with respect to the
values of any In Kind relief, they will proceed with an appraisal process as set forth above. If there
is no monetary recovery, all Attorneys’ Fees and Costs due to Counselors under this Contract shall
be paid from the City’s funds at the time of recovery and collection.
3.Costs.
It will be necessary for Counselors to incur and advance certain court costs and other types
of expenses for the City (“Costs”). These Costs and other expenses may include, but are not limited
to, the following: filing and service fees; costs of investigative services; travel expenses (including
air fare, ground transportation, vehicle mileage, lodging, and meals); deposition expenses and
court reporters fees; outside trial services providers; trial equipment rental and operation fees;
preparation of exhibits and graphics; the costs of briefs and transcripts on appeal, and
miscellaneous copying, postage, shipping, and courier expenses. In addition, it will be necessary
to employ expert witnesses and Counselors, with prior approval from the City, may employ and
pay these expert witnesses, and such expenditures shall be included within Costs.
The City agrees to reimburse Counselors for all reasonable Costs out of its share of the
Gross Recovery, after the payment of Attorneys’ Fees specified in Sections 1 and 2 above.
The City understands that Counselors may incur certain expenses, including, for example,
expenses for travel, experts, and copying that jointly benefit multiple cities in the Litigation. The
City agrees that Counselors may allocate such expenses among such cities based on their pro rata
share of the relief obtained, or on any other reasonable basis of which all affected clients are fully
informed.
In some instances, it may be necessary for Counselors to retain special outside counsel to
assist on matters other than prosecuting the City’s claims. Examples of such instances include: a
defendant may seek bankruptcy protection; a defendant may attempt to fraudulently transfer some
of its assets to avoid paying the City’s claim; a complex, multi-party settlement may require an
Page 96 of 113
11
ethics opinion from outside counsel; or a separate lawsuit may need to be filed against a
defendant’s insurance company. The City agrees that Counselors, with written permission of the
City, may retain such special outside counsel to represent the City when Counselors deem such
assistance to be reasonably necessary. In such an instance, the fees of such special outside counsel
shall be advanced by Counselors, shall be deemed a part of Costs, and as such shall be reimbursed
to Counselors by the City from its share of the Gross Recovery provided that (1) the City finds that
such costs were reasonable, proper, necessary, and were actually incurred on behalf of the City,
and (2) such costs were in compliance with, and do not exceed, the rates and limits provided in
Section 8.8 of Exhibit A. If there is no recovery, Counselors will be solely responsible for payment
of the Cost.
McKool Smith, P.C.’s (McKool) obligation to incur and advance Costs, on behalf of (a) the
City, and (b) all other Texas municipalities, or government subdivisions joined in the Litigation
(regardless of whether they are later severed or dismissed from the Litigation) or with similar
claims represented by Counselors is capped at a total of $480,000. All Costs over and above
$480,000 that would otherwise be advanced or incurred by McKool will be advanced and incurred
by Korein Tillery LLC.
4.Application for Attorneys’ Fees.
The City and Counselors intend to seek an order for payment by Defendants of the City’s
Attorneys ‘Fees and Costs (as defined in Sections 1-3 above), if the City prevails, in whole or in
part, in the Litigation. The City agrees to use its best efforts to support any such application.
If the amount of the Attorneys ‘Fees awarded and collected from a court order regarding
Attorneys ‘Fees and Costs exceeds the amount called for under the contingency fee calculation in
Section 1 of Exhibit A, Counselors shall be entitled to the amount of the Attorneys’ Fee awarded
and collected from the Defendants as a reasonable fee, in lieu of payment by the City of the
Attorneys’ Fee. If, however, the amount of the Attorneys’ Fee awarded and collected from a court
order regarding Attorneys’ Fees and Costs is less than the amount as calculated under the
Contingency Fee, Counselor’s Attorneys’ Fee shall remain as calculated by the Contingency Fee
calculation in Paragraph 1 of Exhibit A, and, in that instance, the City may direct that the statutory
attorneys’ fee award be paid directly to Counselors by the Defendants, and the City shall pay the
difference between the Contingency Fee and the attorneys’ fee awarded out of the City’s recovery
in the Litigation.
5.Reasonableness.
The City and Counselors have discussed the reasonableness of the contingency fees
provided for in this Contract, as opposed to an hourly rate, a fixed fee, quantum merit, or some
other possible basis for calculating the Attorneys’ Fees to be paid to Counselors. The City and
Counselors agree that under all the circumstances a contingency fee is the most reasonable and
equitable way to compensate Counselors in light of the effort required, the risks to be undertaken
in the Litigation, and other applicable factors. The City and Counselors further understand that the
substantial effort required will not be compensated if there is no recovery. Therefore, the City
agrees that it will not contest the reasonableness or fairness of this contingency fee contract.
Page 97 of 113
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6.Possible Efforts of Defendants to Invalidate Agreement.
The City and Counselors are aware that, in the past, defendants in litigation involving
public entities have challenged and sought to invalidate contingency fee arrangements between
public entities and outside counsel. The City and Counselors believe that any such challenges to
this Contract would lack merit and that this contingency fee arrangement as set forth above is valid
and in the public interest. The City agrees to join Counselors in opposing any such challenge.
However, if this contingency fee contract is found to be invalid, Counselors agree to continue to
represent the City. Under said circumstances, if there is a recovery, Counselors shall be
compensated based on the reasonable value of its legal services and will be reimbursed for Costs.
If there is no recovery, the City will owe nothing for Attorneys’ Fees or Costs.
7.Division of Attorneys’ Fees.
Counselors may divide the Attorneys’ Fees received for the legal services provided under
this Contract with other attorneys or law firms retained as associate counsel and approved by the
City in writing. The terms of the division, if any, will be disclosed to the City. The City is informed
that, under the Rules of Professional Conduct of the State Bar of Texas, such division may be made
only with the City’s written consent after a full disclosure to the City in writing that a division of
Attorneys’ Fees will be made, the identity of the lawyer or law firms involved, the basis upon
which Attorneys’ Fees will be divided, and of the terms of such division. The City will not
unreasonably withhold approval of associate counsel recommended by Counselors or
unreasonably refuse to consent to a proposed division of Attorneys’ Fees among counsel.
8.Recitals Pursuant to Tex. Gov’t Code Ch. 2254.
8.1 Counselors shall keep current and complete written time and expense records that
describe in detail the time and money spent each day in performing the contract, as
required under Tex. Gov’t Code § 2254.104(a).
8.2 Counselors shall permit the governing body or governing officer of the City, the
attorney general, and the state auditor, or other officials as appropriate, to inspect
or obtain copies of the time and expense records at any time on request, as required
under Tex. Gov’t Code § 2254.104(b).
8.3 On conclusion of the matter for which Counselors were obtained, Counselors shall
provide the City with a complete written statement that describes the outcome of
the matter, states the amount of any recovery, shows the Counselors’ computation
of the amount of the contingent fee, and contains the final complete time and
expense records, as required under Tex. Gov’t Code § 2254.104(c). The complete
written statement required under this section is public information subject to
disclosure under Tex. Gov’t Code § 2254.104(d).
8.4 All time and expense records required herein are public information subject to
required public disclosure under Texas Government Code Chapter 552.
Information in the records may be withheld from a member of the public under
Section 552.103 only if, in addition to meeting the requirements of Section 552.103,
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13
the City Attorney determines that withholding the information is necessary to
protect the City’s strategy or position in pending or reasonably anticipated
litigation. Information withheld from public disclosure shall be segregated from
information that is subject to required public disclosure. Public disclosure may not
be withheld, and is required, regarding the written statement required by Tex. Gov’t
Code § 2254.104(d).
8.5 Any subcontracted legal or support services performed by a person who is not a
contracting attorney, partner, shareholder, or employee of Counselors is an expense
subject to reimbursement only in accordance with Tex. Gov’t Code § 2254.105(4).
8.6 The method for payment of litigation and other expenses and, if reimbursement of
any expense is contingent on the outcome of the matter or reimbursable from the
amount recovered in the matter, whether the amount recovered for purposes of the
contingent fee computation is the amount obtained before or after expenses are
deducted, as required under Tex. Gov’t Code § 2254.105(3).
8.7 The amount of the contingent fee and reimbursement of expenses under the
Contract will be paid and limited in accordance with Tex. Gov’t Code
§ 2254.105(5).
8.8 Counselors’ contingent fee is limited to the lesser of 1) the contingent fee set forth
in paragraph 1. above or 2) four times Counselors’ base fee, as that term is used in
Tex. Gov’t Code § 2254.106.
Because of the expected difficulties in performing the work under this Agreement,
the amount of expenses expected to be risked by Counselors, the expected risk of
no recovery, and the expected long delay in recovery, a reasonable multiplier for
the base fee in this matter is four. Counselors’ reasonable hourly rate for the work
performed under the Agreement is $990 an hour for principals and partners of any
members of the three Counselors ‘firms, $855 for of counsel/senior counsel, $795
an hour for senior level associates practicing 10 years or more; $550 per hour for
other attorneys, and $325 per hour for paralegals or law clerks consistent based on
the reasonable and customary rate in the relevant locality for the type of work
performed and on the relevant experience , demonstrated ability, and standard
hourly billing rate, if any, of the person performing the work, as required under
Tex. Gov’t Code §2254.106(a). These rates apply to the subcontracted work
performed, if any, by an attorney, law clerk, or paralegal. The base fee will be
computed pursuant to Subchapter C, Chapter 2254 of the Texas Gov’t Code by
multiplying the number of hours the attorney, paralegal or law clerk worked in
providing legal or support services for the City times the reasonable hourly rate for
the work performed by the attorney, paralegal or law clerk. The base fee is
computed by adding the resulting amounts. The computation of the base fee does
not include hours or costs attributable to work performed by a person who is not
employed by Counselors.
Page 99 of 113
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Page 100 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 2.c.
Agenda Item: First Reading - Consider Ordinance No. 2022-36 Amending Ordinances; (1) Ord Of 6-9-
1970; (2) Ordinance No. 80-20; and (3) Ordinance No. 95-24, That Established The Library Board for the
City of Huntsville requiring the publication of this Ordinance; providing for a severability clause;
repealing Ordinances in conflict with this Ordinance; providing for a penalty; making other provisions
and findings thereto; and declaring an effective date.
Initiating Department/Presenter: City Attorney
Presenter:
Leonard Schneider, City Attorney
Recommended Motion: First Reading - no action necessary. However, if the Council wishes to waive
the two-reading requirement: Move to temporarily suspend the two-reading requirement and Adopt
Ordinance No. 2022-36, amending the Ordinances; (1) Ord Of 6-9-1970; (2) Ordinance No. 80-20; and (3)
Ordinance No. 95-24, That Established The Library Board for the City of Huntsville requiring the
publication of this Ordinance; providing for a severability clause; repealing Ordinances in conflict with
this Ordinance; providing for a penalty; making other provisions and findings thereto; and declaring an
effective date.
Strategic Initiative: Goal #5, Resource Development - Enhance the quality of life for citizens, businesses
and visitors by leveraging the human and fiscal resources available to the community.
Discussion: The City Council, by ordinance, created the Huntsville Public Library Board in 1970. This
ordinance was amended in 1980 and 1995. No changes to the ordinance have been made in 27 years
and some portions are inconsistent with current policies and ordinances elsewhere adopted by the City.
The proposed updates to the ordinance are summarized as follows:
- changes the number of members from 6 to 7, providing for an odd number of board members
- removes the mandatory action of Council to appoint members at the first meeting in July instead
having the Council appoint them at a time consistent with other boards
-updates the language of board members serving at the pleasure of Council to be consistent with
current ordinances and policies
-gives the Council final approval authority of library policies and procedures
-provides that records of the proceedings of the board be provided to Council
-updates librarian responsibilities
-gives the library board discretion in making recommendations for purchases instead of it being
mandatory
Page 101 of 113
Previous Council Action: The Council has taken no action on this item since the last consideration of
this ordinance in 1995.
Financial Implications: None
Approvals:
Aron Kulhavy
Kristy Doll
Associated Information:
1. Library Board Ordinance 2022-36
2. Ex A
3. Ex B
Page 102 of 113
ORDINANCE 2022-36
AN ORDINANCE OF THE CITY OF HUNTSVILLE AMENDING ORDINANCES; (1)
ORD OF 6-9-1970; (2) ORDINANCE NO. 80-20; AND (3) ORDINANCE NO. 95-24, THAT
ESTABLISHED THE LIBRARY BOARD FOR THE CITY OF HUNTSVILLE
REQUIRING THE PUBLICATION OF THIS ORDINANCE; PROVIDING FOR A
SEVERABILITY CLAUSE; REPEALING ORDINANCES IN CONFLICT WITH THIS
ORDINANCE; PROVIDING FOR A PENALTY; MAKING OTHER PROVISIONS AND
FINDINGS THERETO; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City Council by ordinance ordered the bound Huntsville Code of Ordinances be
published online and said Code of Ordinances were published online and adopted on February 3,
2009; and
WHEREAS, the online Code of Ordinances adopted on February 3, 2009 provide in Chapter 1,
Section 1-22(a) “Nothing in this Code, when adopted, or the ordinance adopting this Code shall
affect the following in effect at the time of the adoption of this Code; and
WHEREAS, Chapter 1, Section 1-22(a)(21) in the online Code of Ordinances provides “Any
ordinance in effect concerning establishment and administration of the library board” which means
the online publication of the current City Code of Ordinances did not repeal any ordinance or
ordinances that established the library board; and
WHEREAS, the City Council of the City of Huntsville (“City Council”) by Ordinance adopted
on June 9, 1970 created a Library Board; and
WHEREAS, the City Council adopted Ordinance No. 80-20 which amended the Ordinance
adopted on June 9, 1970; and
WHEREAS, the City Council adopted Ordinance No. 95-24 which amended the Ordinance
adopted on June 9, 1970; and
WHEREAS, the above three ordinances and the amendments were incorporated and are shown in
the Exhibit A attached hereto and are hereinafter referred to as the Library Board Ordinance; and
WHEREAS, the City Council has determined the Library Board Ordinance needs to be updated
and to resolve any conflicts with the Huntsville Public Library Policies & Procedures and to
provide for efficient administration and oversight of the Library; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, COUNTY OF WALKER, STATE OF TEXAS:
I. FINDINGS OF FACT
All of the above premises are hereby found to be true and correct legislative and factual findings
of the City of Huntsville, Texas, and are hereby approved and incorporated into the body of this
ordinance as if copied in their entirety.
Page 103 of 113
II. AMENDMENT
The Library Board Ordinance shown in Exhibit A shall be amended as shown in Exhibit B attached
hereto and incorporated herein.
III. REPEALER
All ordinances or parts of ordinances in force when the provisions of this Ordinance becomes
effective which are inconsistent or in conflict with the terms and provisions contained in this
Ordinance are hereby repealed only to the extent of any such conflict.
IV. SEVERABILITY
Should any paragraph, sentence, clause, phrase or section of this Ordinance be adjudged or held
to be unconstitutional, illegal or invalid, the same shall not affect the validity of this Ordinance as
a whole or any part or provision thereof, other than the part so declared to be invalid, illegal or
unconstitutional.
V. EFFECTIVE DATE
This Ordinance shall take effect on ____________________.
VI. PROPER NOTICE AND MEETING
It is hereby officially found and determined that the meeting at which this Ordinance was passed
was open to the public and that public notice of the time, place and purpose of said meeting was
given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code. Notice
was also provided as required by Chapter 1 of the Development Code of the City of Huntsville,
Texas.
PASSED AND APPROVED on this the _______ day of _____________________, 2022.
THE CITY OF HUNTSVILLE, TEXAS
_________________________________
Andy Brauninger, Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ____________________________
Kristy Doll, City Secretary Leonard Schneider, City Attorney
Page 104 of 113
Exhibit A to Ordinance No. ___________
Page 105 of 113
Page 106 of 113
Page 107 of 113
LEONARD SCHNEIDER 1
EXHIBIT B
City of Huntsville Library Board
IN GENERAL.
Sections:
Editor’s Notes
Section 1- Library board created; composition; qualifications, compensation, maximum term of members.
Section 2- Appointment, tenure of members
Section 3- Filling of vacancies; removal of members
Section 4- Officers; meetings; bylaws; quorum; records; librarian. Powers and duties of library
Section 5- Powers and duties of library board
*Editor's note--Ord. of June 9, 1970 amended the Code of Ordinances as they existed in 1970 Code by
adding prior code Ch. 11A, §§ 11A-1--11A-5 [18.01.01--18.01.05]. In several instances catchlines were
altered by the editors to facilitate indexing and reference; otherwise, the ordinance is set out as enacted.
Section 1- Library board created; composition; qualifications, compensation, maximum term of
members.
Library board created; composition; qualifications, compensation, maximum term of members.
There is hereby created and established a library board to be composed of six (6) seven (7) members. Such
board shall be officially designated as the library board of the City of Huntsville.
Members of the library board shall serve without compensation. No member shall serve more than two
consecutive terms beyond any unexpired term that they are appointed to fill.
(Ord. of 6-9-70; Ord. No. 95-24)
(Ord. 95-24, Amended, 08/08/1995)
(Ord. 2022-___, Amended __/__/____)
Section 2. Appointment, tenure of members.
(a) The original members of such board shall be appointed by the mayor by and with the advice and
consent of the city council.
(b) Each member shall hold his office for a term of three (3) years, except that of those first
appointed, two (2) shall hold office for terms of one (I) year, and two (2) other members shall hold office
for a term of two (2) years, the term of each to be determined by lot, and thereafter their successors shall
hold office for three (3) years and until their successors are appointed.
(c) The city council shall at its first official meeting in the month of July in each year act upon
appointments made to the board by the mayor in filling expired terms of members of the board.
(Ord. of 6-9-70)
Page 108 of 113
LEONARD SCHNEIDER 2
Section 3- Filling of vacancies; removal of members.
(a) Upon the death, resignation, removal or expiration of the term of office of any member of the
library board, the remaining members of the board shall recommend to the mayor candidates for
appointment to the library board. Such candidates for appointment to the library board shall be determined
by the board based upon qualification, experience and interest exhibited in the Huntsville Public Library
and shall be submitted to the mayor as soon as practical after the vacancy occurs upon resignation or death
and at least thirty (30) days prior to the expiration of the term of an appointed member of the board, the
mayor, with the advice and consent of the city council shall appoint the person selected by the Mayor to the
unexpired term, if applicable and to the term of appointment if a new member.
(b) Any member of the library board may be removed from office by the city council for any cause
deemed by the city council sufficient for their removal in the interest of the public service. Each member of
the Board shall serve at the pleasure of the City Council and may be removed by the City Council at any
time without cause.
(Ord. of 6-9-70)
(Ord. 2022-___, Amended __/__/____)
Section 4- Officers; meetings; bylaws; quorum; records; librarian.
(a) The library board shall elect a president, a vice-president and a treasurer at its regular meeting
in July after appointment. Such terms shall be for one year.
(b) The library board shall meet quarterly. Additional meetings may be called by the president at
the request of any three (3) members, or at the request of the librarian. The library board shall adopt such
bylaws, rules and regulations as it deems best to govern its actions, subject to approval by City Council.
(c) The presence of any four (4) members at a meeting of the board shall constitute a quorum.
(d) The librarian shall be secretary of the library board and shall keep a record of all the proceedings
of the library board, which record of each meeting shall, upon request of the city council be delivered to the
City Council to it for its inspection and review.
(e) The librarian shall oversee the administration of the library with advice and review of the board.
The librarian shall be held responsible for the care of the building and equipment, for employment and
direction of the staff, for the efficiency of the library service to the public, and for the operation of the library
under the financial conditions set forth in the annual budget.
(f) All purchase of books for the library collection and/or acceptance of books by donation into the
library collection shall be purchased/accepted in accordance with the Huntsville Public Library Policies &
Procedures as adopted by the City Council.
(Ord. of6-9-70; Ord. No. 80-20, § 1, 7-1-80)
(Ord. 2022-___, Amended __/__/____)
Section 5- Powers and duties of library board.
(a) The library board shall encourage development of the public library, and shall recommend to
the city council policies and programs for the advancement of the library.
Page 109 of 113
LEONARD SCHNEIDER 3
(b) The library board shall cooperate with all other public and private groups in advancing the best
interests of the public library, and shall recommend policies and procedures for the administration and
protection of the library system.
(c) The library board shall may make recommendations for the purchase of books, journals,
publications, furniture' and fixtures and other necessary property.
(d) The library board shall review the annual budget request prior to its presentation to the city
administration and make any recommendations that are deemed necessary.
(e) The library board shall seek out and encourage application to and participation in any state or
federal programs to receive funds for the development of the Huntsville Public Library, subject to approval
by the City Council.
(f) The board shall review periodic operations reports as presented by the librarian and by request,
shall render such other reports and recommendations to the city council when required in furthering the
overall purpose of developing public library service for the City of Huntsville.
(Ord. of 6-9-70; Ord. No. 80-20, § l, 7-1-80)
(Ord. 2022-___, Amended __/__/____)
Page 110 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 3.a.
Agenda Item: Consider the appointments to the City of Huntsville Boards and Commissions for expired
terms or vacant board positions.
Initiating Department/Presenter: City Council
Presenter:
Andy Brauninger, Mayor
Recommended Motion: Move to appoint the Board and Commission members as presented.
Appoint Amanda Withers to the Airport Advisory Board to seat #4
Reappoint Eddene Smith to the Cemetery Advisory Board to seat #10
Reappoint Joe Boaz to the Cemetery Advisory Board to seat #7
Strategic Initiative: Goal #5, Resource Development - Enhance the quality of life for citizens, businesses
and visitors by leveraging the human and fiscal resources available to the community.
Discussion: Please see the attached list for appointments or reappointments to the following City of
Huntsville Boards and Commissions: Art Commission, Housing Authority, Main Street Program Advisory
Board, Parks and Recreation Advisory Board, Planning Commission, Tourism Advisory Board, and
Veterans Affairs Advisory Board. The positions on these Boards and Commissions are either expiring on
August 31, 2022, or are vacant and need to be filled.
Previous Council Action:
Financial Implications: None
Approvals:
Aron Kulhavy
Kristy Doll
Associated Information:
Page 111 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 6.a.
Agenda Item: City Council will convene in closed session as authorized by Texas Government Code,
Chapter 551, Section 551.071 to receive legal advice on Cybersecurity Incident.
Initiating Department/Presenter: City Attorney
Presenter:
Leonard Schneider, City Attorney
Recommended Motion: Not applicable
Strategic Initiative:
Discussion:
Previous Council Action:
Financial Implications:
Approvals:
Leonard Schneider
Kristy Doll
Aron Kulhavy
Associated Information:
Page 112 of 113
CITY COUNCIL AGENDA
11/1/2022
Agenda Item Number: 6.b.
Agenda Item: City Council will convene in closed session as authorized by Texas Government Code,
Chapter 551, Section 551.071 to receive legal advice on Library Policies and Employee Handbook for the
City of Huntsville.
Initiating Department/Presenter: City Attorney
Presenter:
Leonard Schneider, City Attorney
Recommended Motion: Not applicable
Strategic Initiative:
Discussion:
Previous Council Action:
Financial Implications:
Approvals:
Leonard Schneider
Kristy Doll
Aron Kulhavy
Associated Information:
Page 113 of 113