2004-040ORDINANCE NO. 2004-
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 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; and other related matters; and
WHEREAS, the City has 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, approved by the Council in 2002, and
signed by the City Manager, 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
WHEREAS, the City staffhas reported to the City Council that there is a substantial need
for the hereinabove described professional 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 authority to represent the
City, the Agreement for Professional Legal Services is hereby ratified and retroactively
approved, and shall be effective bom and after May 1, 2003.
SECTION 6:
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the /~St// dayof ,J.F~bL~4n/~
EULINE BROCK, MAYOR
That except as provided in Section 5 hereinabove, this ordinance shall
,2004.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPi~OVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Doc uments\Ordinances\04~BAW-UTRWD and TCEQ Matters-Water Utili6es-2003 PSA.doc
2
STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
.THIS AGREEMENT, made and entered into this /~//~ day of ~ 7~~//~~ ,
200~, effective as of May I, 2003, by and between BOOTH, AHRENS & WI~RKENTI-I~, 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.
VClTNIF. ggETH:
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: (1) protection of the
City's important water interests as affected by the filed plan and project of the Upper Trinity
Regional Water District ("UTRWD") for re-use of Lake Chapman and Lake Lewisville water, as
well as other related matters before the Texas Commission on Enviromental Quality ("TCEQ'), or
such other successor agency as the TCEQ may be changed to; (2) the City's possible protest of the
TRA reuse application; (3) the City's issues with respect to the UTRWD, inehiding monitoring,
contract issues and withdrawal of the City's protest of the UTRWD reuse application pending at
TCEQ; (4) evaluate the City's interests relating to Dallas' and Irving's pending reuse applications at
TCEQ; (5) possible renegotiation of applicable Dallas contracts; (6) possible consideration of the
City's application for reuse at the TCEQ; (7) monitor environmental flow application issues that
threaten supply in the Trinity River Basin, including the Galveston Bay application; (8) monitoring
and reporting regarding any legislative developments that affect the City's water interests; (9)
monitoring and reporting on legal and regulatory developments that affect the City's water interests;
and (10) such other water, service or environmental issues that may arise, in which Consultant does
not have a conflict of interest; 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
over the past year in connection with its earlier engagement; 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 therewith, for a fair and reasonable price; consistent with, and for the fees set
forth in Section III hereof; and the Consultant is willing to provide such services;
Page 1
NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the
City and Consultant do hereby mutually AGREE as follows, to wit:
L
Scope 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:
Consultant shall represent the City regarding the 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, including
without limitation, the professional and legal services with regard to submitting
pleadings and comments if directed to do so, reviewing and monitoring said
proceedings, filing pleadings and responses, filing briefs, attending any hearings
and other proceedings in relationship to those matters instructed to do so by the
City, and to consult with the City through its Denton Municipal Utilities staff
with regard to all filings, uncontested and contested hearings, and other issues
related to these matters. 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 the extent possible, this engagement shall also cover legal services rendered on
behalf of the City at the Texas legislature respecting interim matters and
preparation for the upcoming legislative session to the extent that Consultant does
not have a conflict of interest. Specifically, the following activities will include
(without limitation) the course and status of pending legislation, reporting events
to the City, making recommendations thereon, and presenting the City's position
to legislators, as directed. The parties recognize the possibility of entering into
another Professional Services Agreement concerning that indefinite part of the
engagement, as it is too early to tell, with any predictability, what action, or
agenda the City will wish to follow, and how much of the $50,000 in fees will
remain for that portion of the engagement.
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, including legal
research, analysis, and advice with respect to such matters. 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.
Page2 of 9
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 of this Agreement.
Term: This Agreement shall be approved as retroactively effective as of May 1, 2003
or such later date as the previous professional services agreement's funds entered into by
the parties hereto, were exhausted. 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, 2004, 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.
Compensation and Method of Payment:
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 (through 12/31/03) After 12/31/03
Michael J. Booth $210
Carolyn Ahrens $195
Wil Galloway, Associate $190
Ross Richard-Crow, Associate $150
$235
$215
$190
$160
The Consultant has adopted a fee structure ranging ~om $150 to $235 per
chargeable hour, depending 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 clerks or legal assistants to perform those tasks
not requiring the tune of an attorney. Briefing clerks and/or legal assistants time is
billed at the reasonable rates, depending upon the experience and level of education
possessed by the briefing clerk or legal assistant. Consultant agrees that all
charges for the legal services hereunder, including expenses as set forth in Section
III.C. below, shall not exceed $50,000.
The Consultant shall bill the City through the submission of itemized invoices,
statements, and other documentation, together with support data indicating the
progress of the work and the services performed on the basis of monthly
statements, showing hourly rates indicating who performed the work, what type
of work was done, and descriptions and/or details of all services rendered,
including a dally, and an entry-by-entry reflection of billable time spent on this
Page3 of 9
engagement, along with specific description and supporting documentation, if
available, respecting any reasonable and necessary out-of-pocket expenses
incurred by Consultant in performing the professional services provided for under
this Agreement. Professional fees shall be billed in minimum one-tenth (1/10)
hour increments.
Additionally, the City shall either pay directly or reimburse the Consultant, as the
case may be, for reasonable and necessary actual out-of-pocket expenses itemized
on the monthly statement. These expenses include, but are not limited to, long-
distance telephone, fax, reproduction charges, postage, overnight courier, and
transportation and travel charges. All copies will be charged at the rate of fifteen
cents ($.15) per copy for copies made within Consultant's offices, with as much
photocopying as possible being done by outside vendors at bulk rates or by the
City to reduce costs if bulk copying is 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 receipt of an
appropriate itemized invoice or statement. To the 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
shall 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%) per year, until paid in full.
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.
All notices, invoices, statements, and payments 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 Congress Avenue, Suite 1515, Austin,
Texas 78701, as to the Consultant. When so addressed, the notice, invoice,
statement and/or payment shall be deemed given 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.
Page4 of 9
Professional Competency:
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. For the 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 appropriate and properly protects the City's interests.
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 terms 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.
Establishment and Maintenance 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 shall be maintained for a period of at least three years
after receipt of final payment under this Agreement.
Audits and Inspection: At any time during normal business hours and upon
reasonable notice to the Consultant, there shall be made available to the City all of the
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 data relating
to all matters covered by this Agreement.
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.
VIII. Indenendent Contractor Relationship and Liability Insurance:
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
proceeding of any kind brought by a third party which may result from or directly
Page5 of 9
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 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 Carriers, 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 occasioned by the
Consultant's negligent professional act and/or error, act, or omission, in an amount
not less than $1,000,000 combined single limit coverage per occurrence. In the
event of change or cancellation of the policy 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 cancellation, serve a
substitute policy furnishing the 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.
IX. Termination of Aereement:
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 terminate this Agreement by giving the
City fifteen (15) days written notice that Consultant 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 become the property of the City upon termination of this
Agreement.
This Agreement may be terminated in whole or in part, in writing, by either party
in the event of substantial failure by the other party to fulfill its obligations under
this Agreement through no fault of the terminating party. Provided, however, that
no such termination may be 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.
Page6 of 9
XlVt
XV,
Nothing contained herein or elsewhere in this Agreement shall require the City to
pay for any work which is unsatisfactory or which is not submitted in compliance
with the terms of this Agreement.
Alternate Disuute 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 resohition set forth in
Chapter 154 of the Texas Civil Practices and Remedies Code (V.A.T.C.S.).
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.
Compliance with Laws: The Consultant shall comply with all federal, state, local
laws, rules, regulations, and ord'mances 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.
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.
Discrimination Prohibited: In performing the services required hereunder, the
Consultant shall not discriminate against any person on the basis of race, color, religion,
sex, national origin or ancestry, age, or physical handicap.
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 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.
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.
Page7 of 9
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.
Severabilitv: 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.
Responsibilities for Claims and Liability_: 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.
Modification of Agreement: No waiver or modification of this Agreement or of any
covenant, condition, or limitation herein contained shall bc valid unless in writing and duly
executed by the party 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.
Bindine 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) original counterparts by and through its duly authorized City Manager; and Consultant has
executed this Agreemexlt by and through its duly authorized undersigned Shareholder; dated this
the / r/~/~ day of ~t~ ,2004, but effective as of May 1, 2003.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation -2~
Michael A. Conduff, CiCM/anager
Page8 of 9
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
BOOTH, AHRENS & WERKENTHIN, P.C.
A Texas Professional Corporation
By: Michael J. B~t ,President
ATTEST:
By: ~
NOTICE TO CLIENTS
The State Bar of Texas investigates 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
Texas 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.
0357_031208_DentmAgraffhal.do¢
Page9 of 9