2002-222O O NANCE No.
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 SERVICES PERTAINING TO THE APPLICATION
OF THE UPPER TRINITY REGIONAL WATER DISTRICT FOR REUSE OF LAKE
CHAPMAN AND LAKE LEWISVILLE WATER, LEGISLATIVE AND REGULATORY
MATTERS, AND OTHER RELATED MATTERS; 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 Finn 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 the application of the Upper Trinity
Regional Water District for reuse of Lake Chapman and Lake Lewisville water; legislative and
regulatory matters; and other related matters; and
WHEREAS, the City has previously retained the professional legal services of BAW and
has operated under a previous Agreement for Professional Legal Services, approved by the
Council, and signed by the City Manager, regarding water-related 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 quahfications,
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 fn-m 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 from and after April 2, 2002.
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 //~¢~ dayof ~ ,2002.
EULINEBROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Documents\Ordinances\02~BAW PSA-UTRWD and Legislafive-DMU.do¢
STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this /~_-~ day of 4/~
2002, by and between BOOTH, AHRENS & WERKENTHIN, P.C., a /l'exas/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, 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.
WITNESSETH:
WHEREAS, the City deems it necessary and in the public interest to employ legal
counsel to provide professional legal services with respect to water rights issues, including, but
not limited to, application of the Upper Trinity Regional Water District for re-use of Lake
Chapman and Lake Lewisville water, legislative and regulatory matters, and other related matters
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 to render the professional services
in connection therewith, 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:
I. 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 with regard to water rights issues, as well as
other related matters in which consultant does not have a conflict of interest
before the Texas Natural Resources Conservation Commission and otherwise. It
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is specifically contemplated, as part of this representation, that Consultant will
provide legal services with regard to the application of Upper Trinity Regional
Water District for re-use of Lake Chapman and Lake Lewisville water, including
without limitation legal services with regard to submitting a request for heating,
pleadings and comments if directed to do so; reviewing, monitoring, and
participating in proceedings before the TNRCC and its successor agencies;
attending any hearings and other proceedings in relationship to the matter; and
consulting with the City through the Assistant City Attorney for Utilities with
regard to all filings, uncontested and contested heatings, and other issues related to
the matter.
Consultant also shall provide legal services to the City with regard to regulatory
and legislative matters affecting water rights, and other interests as directed by the
City to the extent that Consultant does not have a conflict of interest.
Consultant may 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. Consultant will coordinate activities with the Assistant Director of
Water Utilities and the Assistant City Attorney for Water Utilities or 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 the Assistant Director of Water Utilities as appropriate to carry out the terms and
conditions of this Agreement.
IL Term: This Agreement shall be retroactively effective as of April 2, 2002. The
Agreement shall terminate, provided that all fees and expenses due to Consultant have been paid,
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, 2003, 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
Director for Water Utilities, or his designee.
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HI. Compensation and Method of Payment:
A. 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 9/30/02
Hourly Rate As Of 10/1/02
Carolyn Ahrens,
Michael J. Booth,
Ross Richard-Crow
$185 $195
$200 $210
$140 $150
Consultant has adopted a fee structure ranging from $130.00 to $220.00 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 time of an attorney. Briefing clerks and/or legal assistants time is billed at
the rate of $50.00 to $100.00 per hour, 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
$50,000.00. It is understood that matters and proceedings related to this scope of work may not
be concluded before the expiration of this contract or within the contract amount of $50,000,
which amount is not in the nature ora flat fee or a negotiated rate for the work to be performed.
Before fees for services performed reach 90% of the contract amount of $50,000, City will either
authorize Consultant to withdraw as counsel in any pending proceedings or arrange for an
additional or extended professional services agreement. The parties additionally recognize the
possibility of entering into an additional Professional Services Agreement related solely to
legislative and regulatory matters because of the inde£mite nature of the actions and agenda the
City may wish to pursue with regard to these matters.
B. Consultant shall bill the City through the submission of itemized invoices, statements,
and other documentation, together with support data indicating the progress of the work and the
services performed on the basis of monthly statements, showing hourly rates indicating who
performed the work, what type of work was done, and descriptions and/or details of all services
rendered, including a daily, and an entry-by-entry reflection of billable time spent on this
engagement, along with specific description and supporting documentation, if available,
respecting any reasonable and necessary out-of-pocket expenses incurred by Consultant in
performing the professional services provided for under this Agreement. Professional fees shall
be billed in minimum one-tenth (1/10) hour increments.
C. Additionally, the City shall either pay directly or reimburse Consultant, as the case may
be, for reasonable and necessary actual out-of-pocket expenses itemized on the monthly
statement, including an additional fifteen percent (15%) overhead charge. These expenses
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include, but are not limited to, long-distance telephone, faes'unile transmissions, scanning,
reproduction, postage, overnight courier, and transportation and travel. All copies will be
charged at the rate of fifteen cents ($.15) per copy for copies made within Consultant's offices,
with as much photocopying as possible be'mg done by outside vendors at bulk rates 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 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 of Water Utilities, or his designee; and then shall 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 pement (18%) per year, until paid in
full.
E. It is understood and agreed that the Consultant shall work under the coordination and
general supervision of the Assistant Director for Water Utilities, or his designee.
F. All notices, invoices, statements, and payments shall be made in writing and may be given
by personal delivery or by mall. 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, 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 tune 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 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. 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.
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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 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.
V. 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.
VI. 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 excerpts or transcripts from such records, and
to make audits of contracts, invoices, materials, and other data relating to all matters covered by
this Agreement. City shall be responsible for all reasonable out-of-pocket costs and hourly costs
of Consultant's employees or independent contractors needed to respond to any requests for
audits and inspection.
VII. 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, both the Consultant and the City 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.
VIlI. Independent Contractor Relationship and Liability_ 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 proceeding of any kind brought by a third party which
may result from or directly or indirectly arise from any negligence and/or errors or omissions on
the part of the Consultant or from any breach of the Consultant's 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.
B. Consultant shall maintain and shall cause 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
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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 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 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, and 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.
B. This Agreement may be terminated in whole or in part, in writ'rog, 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 mall, 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 submitted in compliance with the terms of this
Agreement.
X. Alternate Disnute 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 Texas Civil Practices and Remedies Code (V.A.T.C.S.).
XI. 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.
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XIL 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.
xm. Governine Law: For the purpose of detenrfining 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.
XIV. 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.
XV. personnel:
A. 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.
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.
xvm. 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.
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XIX. 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 the party to be ch~ged therewith. No evidence of any waiver or modification shall
be offered or received in evidence in any proceeding arising between thc 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.
XXI. 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 Agreement by ~and t~rough its duly authorized undersigned Shareholder; dated this
the /~ H~. day of (~)/I~//~ ,2002.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By: /~f~ ~"~
CITY OF DENTON, TEXAS
A Texas M~J.tai-~pgl,C~orporation
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BOOTH, AHRENS & WERKENTHIN, P.C.
A Texas Professional Corporation
ATTEST:
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.
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