HomeMy WebLinkAbout2005-120ORDINANCE NO.2005- /,� O
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
WITH THE LAW FIRM OF BOOTH, AHRENS & WERKENTHIN, P.C., A TEXAS
PROFESSIONAL CORPORATION. FOR LEGAL SERVICES PERTAINING TO
NUMEROUS LISTED WATER AND WASTEWATER ISSUES; REGULATORY
ACTIVITIES; AND OTHER RELATED MATTERS AFFECTING THE INTERESTS OF
DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary and appropriate and in the public
interest to continue to engage the law firm of Booth, Ahrens & Werkenthin, P.C., a Texas
Professional Corporation ("BAW"), of Austin, Texas, to provide professional legal services
pertaining to representation of the City of Denton, Texas pertaining to numerous listed water and
wastewater issues; regulatory activities; representation of the City respecting current legislative
activities, and other related matters; and
WHEREAS, the City has twice previously retained the professional legal services of
BAW as the City's outside legal counsel respecting water and wastewater issues and has
operated under a previous Agreement for Professional Legal Services, the first engagement being
approved by the City Council in 2002, regarding water and wastewater -related legislative issues,
as well as other issues, which have demonstrated BAW's expertise of relevant issues concerning
water rights and more importantly, the City's water rights; and
WHEREAS, the City staff has reported to the City Council that there is a substantial need
for the hereinabove described professional legal services by Denton Municipal Utilities, and that
limited City staff cannot adequately perform the specialized legal services and tasks, which are
wholly centered in Austin, Texas, with its own personnel; and
WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional
Services Procurement Act," generally provides that a city may not select a provider of
professional services on the basis of competitive bids, but must select the provider of
professional services on the basis of demonstrated competence, knowledge, and qualifications,
and for a fair and reasonable price; and the City Council hereby finds and concludes that BAW is
appropriately qualified under the provisions of the law, to be retained as outside legal counsel for
the City, specifically Denton Municipal Utilities, respecting this engagement; and
WHEREAS, the City Council has provided in the City budget for the appropriation of
funds to be used for the procurement of the foregoing professional legal services, as set forth in
the Agreement for Professional Legal Services; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the recitations in the preamble are true and correct and are
incorporated herewith as a part of this Ordinance.
SECTION 2: That the City Manager is hereby authorized to execute an Agreement for
Professional Legal Services with the Law Firm of Booth, Ahrens & Werkenthin, P.C., Austin,
Texas for professional legal services pertaining to the matters hereinabove described, in
substantially the form of the Agreement for Professional Legal Services attached hereto and
incorporated herewith by reference.
SECTION 3: That the award of this Agreement is on the basis of the demonstrated
competence and qualifications of the law firm of BAW, and the ability of BAW, to perform the
professional legal services needed by the City for a fair and reasonable price.
SECTION 4: That the expenditure of funds as provided for in the attached Agreement
for Professional Legal Services is hereby authorized.
SECTION 5 That as to the payment of fees and expenses, and the authority to represent
the City, the Agreement for Professional Legal Services is hereby ratified and retroactively
approved and confirmed, and shall be effective from and after December 1, 2004.
SECTION 6: That except as provided in Section 5 hereinabove, this ordinance shall
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the —k& day of 12005.
e""j" - "k
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By: 11ko— � J= —
S90ur Documents\Ordinances\OS W-PSA-Water Issues of the City-DMU-2005.doc
STATE OF TEXAS
COUNTY OF DENTON
AGREEMENT FOR PROFESSIONAL LEGAL
THIS AGREEMENT, made and entered into this /yV day of , 2005,
effective as of December 15th, by and between BOOTH & ASSOCIAT S, P.C. d.b.a. BOOTH,
AHRENS & WERKENTHIN, P.C., a Texas Professional Corporation (hereinafter "Consultant"),
with Michael J. Booth, President, having full authority to execute this Agreement on behalf of the
Firm 515 Congress Avenue, Suite 1515, Austin, Texas 78701; and the CITY OF DENTON,
TEXAS, a Texas Municipal Corporation, 215 East McKinney Street, Denton, Texas 75201
(hereinafter "City"), with Michael A. Conduff, City Manager, having full authority to execute this
Agreement on behalf of the City.
WITNES S ETH:
WHEREAS, the City deems it necessary and in the public interest to employ legal counsel to
continue to provide professional legal services to the City with respect to protection of the City's
important water interests through: (1) monitoring and reporting regarding legislative developments
that affect the City's water interests; (2) monitoringand reporting on legal, regulatory, and industry
developments that affect the City's water interests; (3) general evaluation of water rights
applications filed with the Texas Commission on Environmental Quality ("TCEQ") that may affect
the City; and (4) such other general water, service or environmental issues that may arise, in whidi
Consultant does not have a conflict of interest; and
WHEREAS, the City contemplates that legal research assignments and work related to the
analysis, preparation, filing, and prosecution of any applications on behalf of the City or of any
protests or interventions by the City will be performed under a separate Professional Services
Agreement as may be directed in the future by the City; and
WHEREAS, the Consultant is willing to perform such legal services in a professional manner
as an independent contractor; and has competently and efficiently performed services for the City in
the past in connection with its earlier engagements; and the City has selected Consultant on the basis
of demonstrated competence and qualifications necessary to perform the needed services; and
WHEREAS, the City desires to engage the Consultant once again to render the professional
services in connection herewith, for the fees set forth in Section III hereof; and the Consultant is
willing to provide such services;
NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the
City and Consultant do hereby mutually AGREE as follows, to wit:
Page 1
I. Seop a of Services: The Consultant shall perform the following services in a professional
manner working as an independent contractor not under the direct supervision and control of the
City:
A. Services to be provided:
1. Consultant shall represent the City regarding those professional services
specifically described in the first "Witnesseth" paragraph set forth on page 1
hereof and chosen by the Assistant City Manager of Utilities, or his designees. It
is recognized that it is unknown at the present, how much time and professional
effort will necessarily be expended on the above -described items.
2. To consult with the Assistant City Manager for Utilities, the Director of Water
Utilities, the Assistant Director of Water Utilities, the Assistant City Attorney for
Utilities, and/or other designated administrative personnel or staff regarding any
and all aspects of the professional services to be performed. This will include
coordinating activities with the Assistant Director of Water Utilities, the Assistant
City Attorney for Utilities and their respective staff to efficiently perform the
services required and to preserve the Attorney/Client privilege, work product, and
all other applicable exceptions to the discovery or disclosure of documents
produced by the City and the Consultant under the Scope of Services hereinabove.
B. The Consultant shall perform all the services required by this Agreement in a timely
fashion, and shall complete them in compliance with schedules established by the City
through its Assistant City Manager of Utilities as appropriate, to cant' out the terms and
conditions of this Agreement.
H. Term: This Agreement shall be approved as retroactively effective as of December
15, 2004. This Agreement shall terminate either upon the completion of the professional services
provided for herein; or upon the exhaustion of all professional fees provided for hereunder; or on
December 31, 2005, whichever event shall first occur. This Agreement may be sooner terminated
in accordance with the provisions hereof. Time is of the essence of this Agreement. Consultant
shall make all reasonable efforts to complete the services set forth herein as expeditiously as
possible during the term of this Agreement, and to meet the schedules established by the City,
through its Assistant City Manager of Utilities, or his designee.
Page 2
III. Compensation and Method of Payment:
A. The Consultant shall charge the following fees for its professional services provided to the
City hereunder, based upon the following hourly billing rates for the attorneys and support
staff involved in this matter:
Staff Hourly Rate
Michael J. Booth $250
Carolyn Ahrens, Of Counsel $235
Wil Galloway, Associate $200
Ross Richard -Crow, Associate $160
The Consultant has adopted a fee structure ranging from $160 to $250 per chargeable hour,
dep ending upon the individual involved and his or her level of experience and expertise. From
time -to -time, the Consultant may assign other attorneys to some aspect of the case, with the
view that Consultant will use the lowest hourly rate qualified and available attorney for any
particular matter. The Consultant also utilizes briefing clerics or legal assistants to perform
those tasks not requiring the time of an attorney. Briefmg clerics and/or legal assistants time is
billed at the reasonable rates, depending upon the experience and level of education possessed
by thebriefngcleik or legal assistant. Consultant agrees that all charges for the legal services
hereunder, including expenses as set forth in Section III.C. below, shad not exceed $55,000.00.
B. The Consultant shaD bill the City through the submission of itemized invoices, statements,
and other documentation, together with support data indicating the progess of the work and
the services performed on the basis of monthly statements, showing hourly rates indicating
who performed thework, what type of work was done, and descriptions and/or details of all
services rendered, incuding a daily, and an entry -by -entry reflection of billable time spent on
this engagement, along with specific description and supporting documentation, if available,
respecting any reasonable and necessary out-of-pocket expenses incurred by Consultant in
performing the professional services provided for under this Agreement. Professional fees
shall be billed in minimum one -tenth (1/10) hour increments.
C. Additionally, the City slid either pay directly or reimburse the Consultant, as the case may
be, for reasonable and necessary actual out-of-pocket expenses itemized on the monthly
statement. These expenses include, but are not limited to, long-distance telephone, fax,
reproduction charges, postage, overnight courier, and transportation and travel charges. All
copies will be charged at the rate of fifteen cents ($.15) per copy for copies made within
Consultant's offices, with as much photocopying as possible being done by outside vendors
at bulkrats or by the City to reduce costs if bulk copying is necessary or appropriate.
D. The parties anticipate that invoices or statements for professional services will be generated
on a monthly basis and that said invoices or statements will be sent to the City by Consultant
on or about the 15th day of each month. The City shall make payment to the Consultant
within thirty (30) days after receipt of an appropriate itemized invoice or statement. To the
Page 3
extent that any fees or expenses are disputed by the City, the City shall notify Consultant
within thirty (30) days after its receipt of the invoice or statement, and shall otherwise pay all
undisputed amounts set forth in the invoice or statement within thirty (30) days after its
receipt of the invoice or statement. All invoices or statements shall be a reviewed by the
Assistant Director, Denton Water Utility, or his designee; and shad then be reviewed and
approved for payment by the Assistant City Attorney for Utilities. Any sums due and
payable more than sixty (60) days after the fee bill is received by the City, and not protested
or disputed as allowed above, shall bear interest at the rate of eighteen percent (18%) peryear,
until paid in full
E. It is understood and agreed that the Consultant shall work under the coordination and general
supervision of the Assistant City Manager of Utilities, or his designee.
F. All notices, invoices, statements, andpayments shall be made in writing and may be given by
personal delivery or by mail As to notices: to Michael A. Conduff, City Manager, City of
Denton, 215 East McKinney Street, Denton, Texas 76201 or to his designee. As to invoices,
statements, or payments: to Michael S. Copeland, Assistant City Attorney for Utilities,
Utility Administration Department, at the same address, as to the City; and to Carolyn
Ahrens, Esq. of Booth, Ahrens & Werkenthin, P.C., 515 Congess Avenue, Suite 1515,
Austin, Texas 78701, as to the Consultant. When so addressed, the notice, invoice, statement
and/or payment shall be deemed giver upon deposit of same in the U. S. Mail, postage
prepaid. In all other instances, notices, invoices, statements, and/or payments shall be deemed
given at the time of actual delivery. Changes may be made in the names and addresses of the
responsible person or office to which notices, invoices, statements and/or payments are to be
sent, provided reasonable notice is given.
IV. Professional Competency:
A. Consultant agrees that in the performance of these professional services, Consultant shall be
responsible to the level of competency and shall use the same degree of skill and care
presently maintained by other practicing professionals in the State of Texas performing the
same or similar types of work Forthe purpose of this Agreement, the key persons who will
be performing most of the work hereunder shall be Carolyn Ahrens and Michael Booth,
Shareholders. However, nothing herein shall limit Consultant from using other qualified and
competent members of the firm to perform the services required herein if such delegation is
reasonably appropriateand properly protects theCity's interests.
B. Any agreements, ordinances, notices, instruments, memoranda, reports, letters, and other legal
documents prepared or obtained under the terms of this Agreement are instruments of service
and the City shall retain ownership and a property interest therein. If this Agreement is
terminated at any time for any reason prior to payment to the Consultant for work under this
Agreement, all such documents prepared or obtained under the terns of the Agreement shall
upon termination be delivered to and become the property of the City upon request and
without restriction on their use or further compensation to the Consultant.
Page4
V. Establishment andMaintenance of Records: Full and accurate records shall be
maintained by the Consultant at its place of business with respect to all matters covered by this
Agreement. Such records shad be maintained for a period of at least three years after receipt of final
payment under this Agreement.
VL Audits andlnspection: At any time during normal business hours and upon
reasonable notice to the Consultant, then; shall be made available to the City all of the Consultant's
records with respect to all matters covered by this Agreement. The Consultant shall permit the
City to audit, examine, and make excepts or transcripts from such records, and to make audits of
contracts, invoices, materials, and other datarelating to all matters covered by this Agreement.
VIL Accomplishment of Project: The Consultant shall commence, carry on, and
complete this professional engagement with all practicable dispatch; in a sound, economical and
efficient matter; and, in accordance with the provisions hereof and all applicable laws. In
accomplishing the projects, the Consultant shall take such steps as are appropriate to insure that the
work involved is properly coordinated with any related work being carried on by the City.
VIIL Independent Contractor Relationship andUability Insurance:
A. Consultant shall perform all services as an independent contractor not under the direct
supervision and control of the City. Nothing herein shall be construed as creating a
relationship of employer and employee between the parties. The City and Consultant agree
to cooperate in the defense of any claims, action, suit, or proceedingof any kind brought by a
third party which may result from or directly or indirectly arise from any negligence and/or
errors or omissions on the part of the Consultant or from any breach of the Consultant's
obligations under this Agreement. Nothing herein constitutes a waiver of any rights or
remedies the City may have to pursue under either law or equity, including, without
limitation, a cause of action for specific performance or for damages, a loss to the City,
resulting from Consultant's negligent errors or omissions, or breach of contract, and all such
rights andremedies areexpressly reserved.
B. Consultant shall maintain and shall be caused to be in form at all times during the term of this
Agreement, a legally binding policy of professional liability insurance, fisted by Best Rated
Carriers, with a rating of "A-" or above, issued by an insurance carrier approved to do
business in Texas by the State Insurance Commission. Such coverage shall cover any claim
hereunder occasioned by the Consultant's negligent professional act and/or error, act, or
omission, in an amount not less than $1,000,000 combined singe limit coverage per
occurrence. In the event of change or cancellation of thepolicy by the insurer, the Consultant
hereby covenants to immediately notify the City in writing thereof; and in such event, the
Consultant shad, prior to the effective date of change or cancellation, serve a substitute policy
furnishingthe same or higher amount of coverage. The Consultant shall provide a copy of the
declarations page of such policy to the City through its Assistant City Manager of Utilities,
simultaneously with the execution of this Agreement.
Page 5
DL Termination of Agreement:
A. In connection with the work outlined in this Agreement, it is agreed and fully understood by
the Consultant that the City may cancel or indefinitely suspend further work hereunder or
terminate this Agreement at any time upon written notice to Consultant, Consultant shall
cease all work and labor being performed under this Agreement. Consultant may temrinate
this Agreement by giving the City fifteen (15) days written notice that Consultant is no lonwr
in a position to continue representing the City. Consultant shall invoice the City for all work
satisfactorily completed and shall be compensated in accordance with the terns of this
Agreement. All reports and other documents, or data, or work related to the project shall
become the property of the City up on termination of this Agreement.
B. This Agreement may be terminated in whole or in part, in writing, by either p arty in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party. Provided, however, that no such termination may be
affected, unless the other party is given [1] written notice (delivered by certified mail, return
receipt request) of intent to terminate, and not less than thirty (30) calendar days to cure the
failure; and, [2] an opportunity for consultation with the terminating party prior to
termination.
C. Nothing contained herein or elsewhere in this Agreement shall require the City to pay for any
work which is unsatisfactory or which is not subnritted in compliance with the terms of this
Agreement.
X. Alternate Dispgte Resolution: The Consultant and the City agree that, if necessary,
they will use their best efforts to resolve any disputes regarding the Agreement through the use of
mediation or other forrrs of alternate dispute resolution set forth in Chapter 154 of the Texas Civil
Practices and Remedies Code(V.A.T.C.S.).
XL Entire Agreement: This Agreement represents the entire agreement and
understanding between the parties and any negotiations, proposals, or oral agreements are intended
to be integrated herein and to be superseded by this written Agreement. Any supplement or
amendment to this Agreement, in order to be effective, shall be in writing and signed by the City and
the Consultant.
XQ. Compliance with Laws: The Consultant shall comply with all federal, state, local
laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now
read or hereafter be amended, including but not limited to the Texas Disciplinary Rules of
Professional Conduct.
XDL Governing Law: For the purpose of determining place of agreement and law
governing same, this Agreement is entered into in the City and County of Denton, State of Texas,
and shall be construed in accordance with, and governed by the laws of the State of Texas. Venue
and jurisdiction of any suit or cause of action arising under or in connection with this Agreement
shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas.
Page 6
XIV. Discrimination Prohibited: In performing the services required hereunder, the
Consultant shall not discriminate against any person on thebasis of race, color, religion, sex, national
origin or ancestry, age, or physical handicap.
XV. Personnel:
A. Consultant represents that it has or will secure at its own expanse all personnel required
to perform the services required under this Agreement. Such personnel shall not be
employees nor have any contractual relations with the City. Consultant shall inform
the City of any conflict of interest or potential conflict of interest that may arise during
the term of this Agreement, in accordance with Consultant's responsibilities under the
Texas Disciplinary Rules of Professional Conduct.
B. All services required hereunder will be performed by the Consultant or under its direct
supervision. All personnel engaged in work shall be qualified and shall be licensed,
authorized, or permitted under state and local laws to perform such services.
XVL Assignability: The Consultant shall not assign any interest in this
Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation,
or otherwise) without the prior written consent of the City thereto.
XVII. Severability: All agreements and covenants contained herein are
severable, and in the event any of them, with the exception of those contained in sections headed
"Scope of Services", "Independent Contractor Relationship", and "Compensation and Method of
Payment" hereof, shall be held to be invalid by any court of competent jurisdiction, this Agreement
shall be interpreted as though such invalid agreements or covenants were not contained herein.
XVIII. Responsibilitiesfor Claims and LiahiljW. Approval by the City
shall not constitute nor be deemed a release of the responsibility and liability of the Consultant for
the accuracy and competency of its work; nor shall such approval be deemed to be an assumption of
such responsibility of the City for any defect in any report or other documents prepared by the
Consultant, its shareholders, associates, employees, officers, or agents in connection with this
engagement.
XDL Modification of Agreement: No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly
executed by theparty to be charged therewith. No evidence of any waiver or modification shall be
offered or received in evidence in any proceeding arising between the parties hereto out of or
affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The parties further agree that the provisions
of this article will not be waived as herein set forth.
XX. Captions: The captions of this Agreement are for informational purposes only
and shall not in any way affect the substantive terms or conditions of this Agreement.
Page 7
XXL Binding Effect: This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors, and assigns, where permitted by this Agreement.
IN WITNESS HEREOF, the City of Denton, Texas has executed this Agreement in four (4)
ori&al counterparts by andthrough its duly authorized City Manager; and Consultant has executed
this Agree ent by and through its duly authorized undersigned Shareholder, dated this the
day of , 2005, but effective as of December 15, 2004.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By
Michael A. Conduff, Ci ager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY. CITYATTORNEY
Ci
By:
%"A
BOOTH & ASSOCIATIESy P.C., DB/A
BOOTH, AHRENS & WERKENTHIN, P.C.
A Texas Professional Corporation
Michael J. ooth, President
Page 8
ATTEST:
By: ,. 6J ec . a
NOTICE TO CLIENTS
The State Bar of Texas instigates and prosecutes professional misconduct committed by Texas attorneys.
Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar of Texan
Office of General Counsel will provide you with information about how to file a complaint. For more information
please call 1-800-932-1900. This is a toll -free call.
S:\Our Docunents\(bntracls\03TBooth Ahrats & WerkenthinPSA-Legal Water Issues-2001doc
Page 9