2005-120AN 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
perta'ming 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 fights 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 Mtmicipal 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 reta'med 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 tree 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 pertain/ng 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 /tg/~. _l day of ~ ,2005.
EULINEBROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: /I '
STATE OF TEXAS §
COUNTY OF DENTON §
AGRl~MENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGRFEMENT, made and entered into this day of ,2005,
effective as of December 15th, by and between BOOTH & ASSOCIATI~,S, P.C.d.b~. BOOTH,
AHRENS & WERKENTHIN, P.C., a Tex~s Professional Corporation (hereinafter "Comultant"),
withMichael J. Booth, President, having full authority to execute this Agreement on behalf of the
.Firm, 515 Congress Av¢oue, Suite 1515, Austin, Texa~ 78701; and the CITY OF DENTON,
TEXAS, a Teras Municipal Corporation, 215 East McKkmey Street, Denton, Texas 75201
(hereinafter "City"), withMichael A. Conduff, City Manager, having full authority to execute this
Agreement on behalf of the City.
WlTNESS ETH:
WHEREAS, theCity deems it necessary andin thepublic interest to empby 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 reg;~rding legislative devdopments
that affect the City's water interests; (2) monitoringand reporting on legal, regulatory, and indmtry
devdopments that affect the City's water interests; (3) general evahation of water rights
applications fded with the Texm Comm~ssionon Environmental Quality ("TCBQ") that may affect
theCity; and(4) such other general water, service or environmental issues that may arise, in which
Consultant does not have a conflict of interest; and
WHEREAS, the City contemplates that legal research assignrnents 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 perforrmd under a separate Professional Services
Agreement as may be directed in the futme by theCity; and
WHEREAS, the Consultant is willing to perform such legal services in a professional manner
as an indq0endent contractor; andhns 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 agah to render the professional
services in connection here, vith, 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:
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I. Scope 'ff,qervice,~: 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:
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.
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.
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 carry out the terms and
conditions ofth/s Agreement.
II. Term: Tkis 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 ail 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.
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Compensation and Method of Payment:
The Consukant shall chmge the folbwing fees for its professional services provided to the
City hereunder, based upon the folbwing hourly billing rates for the attomeys and support
staff involved in this matter:
Staff Hourly Rate
Michael J. Booth
Carolyn Ahrens, Of Counsel
Wil Galbway, Associate
Ross Richard-Crow, Associate
$250
$235
$200
$160
The Consultant has adopted a fee structure ran~ng from $160 to $250 per chargeable hour,
dependingupon theindividuaiinvolved and his or her levd of exp~xience 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 atta'ney for any
particular matter. The Consultant also utilizes briefing cledcs or legal assistants to perform
those tasks not requiring the time of an attorney. Briefing clerics and/or legal assistants time is
billed at thereasonablerates, depending upon the experience and levd of education possessed
by thebfi&mg cleflc or legal assistant. Consultant agrees that all charges for the legal services
hereunder, including expmses as set forth in Section III.C. below, shall not exceed $55,000.00.
The Consultant shall bill the City through the subn'dssion of itemized invoices, statements,
and other docmuentation, together with support data indicating the prog'ess of the work and
the services performed on the basis of monthly statements, showing hourly rates indicating
who performed the work, what type of work was done, and descriptions and/or details of all
services rendered, including a daily, and an entvf-by-entry reflection of billable time spent on
this engagement, along with spedfic description and supporting docurnentation, if available,
respecting any reasonable and necessary out-of-pocket expmses incurred by Consultant in
performing the professional services provided for under this Agreement. Professional fees
shall be billed in minknum one-tenth (1/10) hour incxements.
Additionally, theCity shall either pay directly or rein-burse the Consultant, as the case may
be, for reasonable and necessary actual out-of-pocket expenses itemized on the monthly
statement. These expenses include, but are not limited to, long-distance telephone, fax,
reproduction chmges, postage, overnight courier, and transportation and travel charges. All
cop/es will be charged at the rate of fifteen cents ($.15) per copy for copies made within
Consultant's offiees, with as much photocopying as possible being done by outside vendors
at bulkrates or by the City to reduce costs if bulk copyingis necessary or appropriate
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 recdpt of an appropriate itemized invoice or statement. To the
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extent that any fees or expenses are disputed by the City, the City shall notify Consultant
within thirty (30) day s after its receipt of the invoice or statement, and shall othaweise pay all
undisputed amoonts 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 sha~ then be reviewed and
approved for pay~uent by the Assistant City Attomey 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%) per year,
until paid in full.
It is understood and agreed that the Consultant shall work under the coonlinatien and general
sup awision of the Assistant City Manager of Utilities, or his designee.
All notices, invoices, statements, and payments shall be made in writing and may be given by
personal delivery orby mall. As to notices: to Michael A. Conduff, City Manager, City of
Denton, 215 East McKhney Street, Denton, Tex,~ 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 add~ess, as to the City; and to Carolyn
Ahrens, Esq. of Booth, Ahrens & Werkenthin, P.C., 515 Cong'ess Aveone, Suite 1515,
Austin, Texm 78701, as to the Consultant. When so addressed, the notice, invoice, statement
and/or payment shall be deerued giv{m upon dep~it of same in the U. S. Mall, postage
prepaid. In allother instances,notices, invoices, statements, and/or payments shallbe deemed
given at the time of actual delivery. Changes may be made in the names end adchesses of the
responsibleperson or office to which notices, invoices, statements and/or payments are to be
sent, provided reasonable notice is given.
IV. Professional Com_mtency:
Consultant agrees that in the per~rmance 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 Texm performing the
same or similar types of work. Forthepurpose 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 fn-m to perform the services required herein if such delegation is
reasonably app top riat e and properly protect s the City's interest s.
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 terrm of the Agreement shall
upon ternmation be delivered to and become the property of the City upon request and
without restriction on thek use or further compensation to the Consultant.
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V. EstablishmentandMaintenanceofRecords: Full and accurate records shall be
ma'mtalned by the Consultant at its place of business with respect to all matters covered by this
Agreement. Such records shall be maintained for a period of at least three yeats after recdpt of final
payaent under this Agreement.
VI. Audits andlns_nection: At any time during norrral business hours and upon
reasonable notice to the Consultant, there 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 datarel~ting to all matters covered by this Agreement.
VIL Accomplishment of Pro_iect: The Consultant shall comn~nce, cany 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 insore that the
workinvolved is properly coordinated with any related workbeing carried on by the City.
VIK Independent Contractur Relationship andLialili~ Insurance:
Consultant shall perform all servieas as an independent contractor not under the direct
supervision and control of the City. Nothing herein shall be construed as creating a
relationship of empbyer and employee between the parties. The City and Consultant agree
to cooperate in the defense of any clakns, action, suit, or proceedingof any kind brought by a
thhd 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 Consuhant'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 spedfic performance or for damages, a loss to the City,
resulting from Consultant's neg~gent errors or omissions, or breach of contract, and all such
rights and remedies are expressly reserved.
Consultant shall maintain and shall be caused to be in force at all times during the term of this
Agreement, a legally binding policy of professional liability insurance, listed by Best Rated
Carders, with a rating of "A-" or above, issued by an insurance carder approved to do
business in Texas by the State Insurance Commission. Such coverage shall cover any claim
hereunder occesioned by the Consultant's negligent professional act and/or error, act, or
omission, in an amoant not less than $1,000,000 combined single limit coverage per
occurrence. In theevent of change or cancellation ofthepolicy by the insurer, the Consultant
hereby covenants to immediately notify the City in writing thereof; and in such event, the
Consultant shall, prior to the effective date of change or caneellatim, serve a substitute policy
furnishingthe same or higher amotmt of coverage. The Consultant shall provide a copy of the
declaratiom pageofsuch policy to the City through its Assistant City Manager of Utilities,
simultaneously with the execution of this Agreement.
Page5
IX. Termination of A~reement:
In connection with the work outlined in this Agreement, it is agreed and fully understood by
the Consultant that the City may cancel or indeffmitely suspend further work hereunder or
terminate this Agreement at any time upon written notice to Consultant, Consultant shall
cease all work and labor be'rog performed under this Agreement. Consultant may tenrdnate
this Agreement by givhg theCity fiReen (15) days written notice that Consukant is no longer
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 terms of this
Agreement. All reports and other documents, or data, or work related to the project shall
becume the property of the City up on termination of this Agreement.
This Agreement may be terminated in whole or in part, in writing by either p arty in the event
of substantiai failure by theother party to fulfill its obligations under this Agreement through
no fault of the ternmating party. Provided, however, that no such ternmation may be
affected, unless the other party is given [1] written notice (delivered by certified mail, rem'n
rece/pt 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
t erminatio~
Nothing contained herein or elsewhere in this Agreement shall reqtfire the City to pay for any
workwhich is unsatisfactory or which is not submitted in compliance with the tenm of this
Agreement.
X. Alternate Dispute 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 forms of alternate dispute resolution set forth in Chapter 154 of the Texes Civil
Practices and Remedies Code (V.A.T.C.S.).
XI. Entire A~reement: This Agreement represents the entire agreement and
understandhg 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 sigoed by the City end
the Consultant.
XII. Compliance with Laws: The Consultant shall comply with all federal, state, local
laws, roles, regulations, and ordktances applicable to the work covered hereunder as they may now
read or hereafter be amended, inclading but not limited to the Tex~ Disdplinaty Rules of
Professional Conduct.
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 Texm,
and shall be construed in accordance with, and govamed by the laws of the State of Text. Venue
and jurisdictien 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, Text.
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XIV. Discrimination Prohibited: In performing the services required hereunder, the
Consultant shall not discriminate agahst any person on thebasis of race, color, religion, sex, national
orion or ancestry, age, or physical handicap.
XV. Personnel:
Consultant represents that it has or will secure at its own expense all personnel required
to perform the services required under this Agreement. Such persormel shall not be
employees nor have any conh-actual relations with the City. Consultant shall inform
theCity 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 Disciplinmy Rules of Professional Conduct.
Allservices 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.
XVI. 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.
XVK Severabili~: All agreements and covenants contained herdn 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
Payn-ent" hereof, shall be heldto be invalid by any court of competent jurisdiction, this Agreement
shall be intapreted as though such invalid agreements or covenants were not contained herein.
XVI~. Res_nonsibilities forClaims andLialility: Appreval by the City
shall not constitutenorbe deemed a release of the responsibility and liability of the Consultant for
the accuracy and competency of its work; nor shall such approval be deerrtxt 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.
XIX. Modification of Agreement: No waiver or modification of this Agreement
or o£any covenant, condition, or limitation herdn 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 recdved in evidence in any proceeding arising between the parties hereto out of or
affecting this Agreement, or the rights or obligations of the pat-ties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The parties further agree that the provisions
of this article willnot be waived as herein set forth.
KX. Captions: The captions of this Agreement are for informatioml purposes only
and shall not in any way affect thesubstantiveterms or conditions of this Agreement.
Page 7
Binding Effect: This Agreement shall be binding upon and inure to the benefit
of the parties hereto and thek respective heirs, executors, administrators, legal representatives,
successors, and assigns, where permitted by this Agreement.
IN WITNESS ItERI~F, theCity of Denton, Teras has exemted this Agreement in four (4)
ori~tnal counterparts by andthrough its duly authorized City Manager; and Consultant has exe_cute, d
this Agreeri~ent b.y,~andthrough its duly authorized und~xsigned Shmeholder, dated this the ./~
day of _/4~2LL~ ,2005, but effective as of Dec~nber 15, 2004.
CITYOF DENTON, TEXAS
A Texas Municipal Corporation
Michael A. Conduff, CiI~h.Mafiager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITYATTORNEY
BOOTH & ASSOCIATIES, P.C., D/B/A
BOOTH, AHRENS & WERKENTHIN, P.C.
A Texas Professional Corporation
Page8
ATTEST:
By:
NOTICE TO CLIENTS
The State Bar of Texm investigates and prosecutes pro~ssional misconduct committed by Texa~ attorneys.
Although not every comglaint against or dispute with a lawyer involves professional misconduct, the State Bar of Texa~
Office of Genwal Counsel will provide you with information about how to file a complaint. For more infcrmation
ple~e call 1-800-932-1900. This is a toll-free call.
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