BAWA Resolution No. 2024-13 RESOLUTION NO. 2024-13
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN AREA
WATER AUTHORITY AUTHORIZING THE GENERAL MANAGER TO
NEGOTIATE AND EXECUTE A CONTINGENCY FEE AND RETAINER
AGREEMENT WITH FRAZER LAW, PLC, AND VENTURA LAW TO PERFORM
LEGAL SERVICES IN CONNECTION WITH POTENTIAL LITIGATION
REGARDING THE PRESENCE OF POLYFLUOROALKYL SUBSTANCES (PFAS),
INCLUDING, BUT NOT LIMITED TO, PFOA AND/OR PFOS, IN DRINKING
WATER, WASTEWATER AND SOIL IN THE BAYTOWN AREA WATER
AUTHORITY'S PROPERTY; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
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WHEREAS, the Board of Directors of the Baytown Area Water Authority (the "Board") is
pursuing a Contingency Fee and Retainer Agreement with Frazer Law, PLC, and Ventura Law to
perform legal services in connection with potential litigation regarding the presence of Polyfluoroalkyl
substances(PFAS)in drinking water,wastewater and soil in Baytown Area Water Authority("BAWA")
property. Should detectable levels of PFAS be present,based upon revised standards issued by the United
States Environmental Protection Agency, BAWA hopes to recover damages from the manufacturers;
and
WHEREAS, the Frazer and Ventura law firms represent municipalities and water systems in
PFAS litigation across the country and have developed a specialty and competence in such litigation.;
and
WHEREAS, the law firms are members of the Water Council for the US Conference of Mayors
and, in this capacity, contacted BAWA in September 2023 regarding potential claims and recoveries
from settlements with various manufacturers that were recently announced; and
WHEREAS, BAWA has no previous relationship with either law firm; and
WHEREAS, the General Counsel's Office of BAWA of Baytown has neither the capacity,
expertise, nor current license requirements, to adequately represent BAWA in the current multi-district
federal litigation; and
WHEREAS, lawsuits of this type are generally handled on a contingency basis by firms with
expertise in the area; and
WHEREAS, it is uncommon for law firms with such expertise to charge an hourly rate; and
WHEREAS, an hourly rate for such complex and time-consuming litigation would not be
economically feasible or in residents' best interests, especially considering the possibility of a loss or
minor recovery; and
WHEREAS, entering into a contingency fee arrangement with law firms with expertise in this
area of the law and the capacity to handle large,complex cases on a nationwide basis at no cost to BAWA
(unless BAWA recovers) is the most advantageous, expeditious, and economical way to protect
BAWA's rights; and
WHEREAS, before the Contingency Fee and Retainer Agreement is effective and enforceable,
BAWA must receive approval from the Texas Attorney General in accordance with Section 2254.1038
of the Texas Government Code; NOW THEREFORE
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA WATER
AUTHORITY:
Section 1: That the Board finds that:
a. there is a substantial need for the legal services;
b. the legal sere ices cannot be adequately performed by the attorne)s and supporting
personnel of BAWA; and
C. the legal services cannot reasonably be obtained from attorne)s in private practice
under a contract providing only for the payment of hourly fees, without regard to
the outcome of the matter, because of the nature of the matter for which the
services will be obtained or because BAWA does not have funds to pay the
estimated amounts required under a contract providing only for the payment of
hoUrl) fees.
Section 2: That the Board hereby authorizes the General Manager to negotiate and execute a
Contingency Fee and Retainer Agreement with Frazer Law, PLC, and Ventura Law to perform legal
services in connection with potential litigation regarding the presence of Polyfluoroalkyl substances
(PFAS), including, but not limited to, PFOA and/or PFOS, in drinking water, wastewater and soil in
Baytown,Texas. Such agreement shall be under terms and conditions acceptable to the General Manager
and General Counsel.
Section 3: That the General Manager and/or General Counsel shall, in accordance with Section
2254.1038 of the Texas Government Code seek approval from the Texas Attorney General for the
Contingency Fee and Retainer Agreement with Frazer Law, PLC, and Ventura Law.
Section 4: This resolution shall take effect immediately from and after its passage by the Board
of Directors of the Baytown Area Water Authority.
2
INTRODUCED, READ and PASSED by the affirmative vote of the Board of Directors of the
Baytown Area Water Authority this the 201" day of March, 2024.
Z4BF.NdDALBRADLErSMITH, President
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APPROVED AS FOFN:
SCOTT L MOj D, General Counsel
R•Scott\BAWA 2024-03-W.Conti ngencyFee&RetaierAgreement-PFASLawsuit docx
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EXHIBIT "A"
RETAINER AGREEMENT
THIS RETAINER AGREEMENT made and entered into this_day of September,2023,
by and between the City of Baytown, Texas, (the "Client" or "You") and Roe Frazer of Frazer
Law, PLC and Ventura Law (collectively the "Firms" or "we"), in connection with potential
litigation regarding the presence of Polyfluoroalkyl substances, including, but not limited to,
PFOA and/or PFOS, in drinking water, wastewater and soil in the property of the Client.
1. For and in consideration of the mutual promises herein contained and other good and
valuable consideration, the parties hereby agree as follows: The Client hereby engages the
Firms to represent it in potential civil litigation in connection with legally tenable claims
to be brought against manufacturers and others regarding the presence at unacceptable
detectable limits of a certain group of chemicals known as Polyfluoroaklyl substances,
including, but not limited to, PFOA and PFOS, in drinking water, wastewater and soil in
the property of the Client (the "case" or "matter"). Subject to favorable results in their
investigation into Client's potential claims, the Firms will file and prosecute such lawsuit
as are necessary on behalf of the Client against responsible parties that The Firms, after
consultation with and approval by the Client, deem necessary to a successful outcome of
the litigation. The Firms will submit any proposed complaint or petition to the Client for
approval before filing. If nothing is recovered, the Client will not be indebted to the Firms
for any attorney's fees or expenses the Firms might incur. If the Firms' investigation results
in a finding that, in their opinion, does not warrant the filing of a lawsuit, then the Firms
will notify the Client of that conclusion, in which event the Client will owe the Firms
nothing and this Agreement will be terminated.All of the lawyers and employees the Firms
are representing the Client only in their capacity as lawyers and employees of Frazer Law
PLC and Ventura Law.
2. The Firms have made no promises and will make no promises or guarantees as to the
probabilities of outcomes or the amounts recoverable in connection with the Clients'
claim(s).
3. The Firms assume joint responsibility for the representation described in this Agreement.
Client approves of and consents to the participation of all the Firms in the representation.
The Client understands and agrees that the total contingency fee described in paragraph 5
(the"Contingency Fee") will be divided equally among the Firms or in such manner as the
Firms may deem appropriate based upon the work performed by each. The Client agrees
to this division of responsibilities and fees. The Firms might propose association with other
firms or attorneys which we reasonably believe might assist in the prosecution of this
litigation. As to any other proposed associated counsel, the Client will be provided the
names of that counsel in advance of our association,and will have the right to approve their
association on its behalf. The division of fees among the Firms, or the association with
additional counsel, does not change the total Contingency Fee described in paragraph 5
owed by the Client.
4. The Firms agree to represent the Client on a contingent basis, such that any attorney's fees
and expenses shall be paid only if the Finns obtain a favorable result in this case. The Finns
will advance the costs of this litigation including filing fees,transcript costs,notices,travel
expenses, expert fees, and copy and delivery charges. While the Finns will seek
reimbursement of these charges from the court and/or the adverse parties, they understand
that reimbursement of their expenses is not guaranteed.
5. The Client agrees to pay the Finns a total Contingency Fee of twenty-five percent(25.00%)
of the total amount of money or other items of value obtained in connection with the
settlement, trial, or appeal of the claim (the "Contingency Fee"). In the event of a
settlement, the Contingency Fee shall be computed on the basis of the present value of the
settlement. The Client agrees that the Finns shall recover all costs and expenses reasonably
incurred by the Finns from the gross recovery. If there is no recovery, the Client shall not
be responsible to reimburse the Finns for any costs and expenses, or if such costs and
expenses exceed the gross recovery, the Client shall not be responsible for such excess.
Costs and expenses shall be deducted before the Contingency Fee is calculated. These costs
and expenses do not change the Contingency Fee percentage. Furthermore, any expenses
that benefit multiple clients will be spread evenly,pro rata, among them. To the extent that
attorney's fees are awarded by a Court, those fees, to the extent collected from any adverse
party, shall be credited against the Contingency Fee to be paid if the amount awarded is
less than 250 o of the total amount obtained in connection with the settlement,trial or appeal
of the claim. If the amount awarded and paid by the adverse party is greater than 25% of
the total amount of money or other items of value obtained in connection with the
settlement, trial or appeal of the claim, then that amount shall be the entire fee owed to the
Firms. Under no circumstances shall the Client share in any attorney's fees, however.
6. The Finns will not settle the Client's claim without the approval of the Client, who will
have the absolute right to accept or reject any settlement. The Finns will notify the Client
promptly of the terns of any settlement offer received by the Finns.
7. The Firms will take reasonable measures to keep confidential all information relating to
representation of the Client, unless disclosure is authorized by the Client or required by
applicable codes of professional responsibility. The Finns may, however, include your
name in a published list of our clients, with your written approval.
8. The Client will have the right at any time to terminate the Firms' representation, with or
without cause,upon written notice to the Firms. After filing suit,the Firms,or any of them,
may withdraw as permitted under the Texas Rules of Professional Conduct. Upon
termination of representation,the Finns shall take steps to the extent reasonably practicable
to protect the Client's interests, will give reasonable notice to the Client, will allow time
for employment of other counsel, and will surrender papers and property to which the
Client is entitled. If the Firms withdraw or are discharged before any recovery is obtained,
the Client agrees to pay a reasonable fee for the services rendered. If the parties are unable
to agree on a reasonable fee for the services rendered, the Firms and the Client agree that
the fee will be determined by binding arbitration proceedings before a neutral affiliated
with the Judicial Arbitration and Mediation Services (JAMS); in any event, the Firms and
Client agree that the fee determined by arbitration shall not exceed the Contingency Fee of
251 o as defined in paragraph 5.
9. The Firms have found that the use of email is an expedient and effective method of
communicating with clients and in transmitting documents. While the Firms are mindful
of the fact that it is possible for such communications to be intercepted and read, they agree
to take all reasonable measures to preserve the confidentiality of email communications
and have concluded that there is a sufficient likelihood of confidentiality in this means of
transmission to justify its use with the Client on a regular basis. The Client agrees that the
Firms may use email to communicate with it and to transmit documents to it from time to
time.
10. This Agreement does not include any contract or agreement for any other legal
representation not herein expressly referenced. The Client understands that the Firms will
not provide any tax, accounting, or financial advice or services regarding this matter. If
additional legal services are necessary in connection with or beyond the scope of the
engagement reflected herein and the Client requests an attorney to perform such services,
separate and additional fee arrangements will be made between the Client and the Firms.
Any request for legal services unrelated to this engagement must be set forth in a separate
written agreement signed by the Client and one or more of the Firms.
11. In the event that the Firms recover any compensation for the Client,all payments recovered
will be first deposited and/or paid into the trust account of one of the members of the Firms,
or a trust account designated by them, from which account those funds will be distributed,
pursuant to an itemized accounting to the Client consistent with the terms of the settlement
or judgment minus the Contingency Fee and costs as set forth in this Agreement. Funds
may be held in the IOLTA trust account of the Firms, or any of them, and the interest, if
any, will be sent to the appropriate Bar Foundation. The Firms will make every effort,
consistent with applicable Bar Rules, to put any settlement in an interest bearing account
for the benefit of the Client.
12. Arbitration of Disputes: If a dispute arises between the Client and the Firms regarding or
connected with fees/costs due to the Firms or legal services performed by or on behalf of
the Firms in connection with the claim(s)covered by this Agreement, such dispute shall be
submitted to binding arbitration as set forth in paragraph 8. The arbitration also includes
any claim against the Firms for breach of contract, negligence, and breach of fiduciary duty
or other wrongdoing. The parties agree that the governing law for such dispute will be the
law of the State of Texas,notwithstanding any conflict of law doctrine to the contrary. The
parties also agree that the exclusive and sole venue and jurisdiction for any such action
shall be Baytown, Texas and consent to personal jurisdiction in said place.
13. The Firms acknowledge that information of Client's business practices and confidential
information gained from the Client through the representation of the Client and its agents
and representatives would create a professional conflict of interest in the representation of
others in current and future litigation of any nature whatsoever against Client. To the
maximum extent permitted by the Texas Rules of Professional Conduct, the Finns agree
that they will institute no action or suit of any nature whatsoever,at law or in equity, against
Client, Client's agents, successors and assigns, nor aid in the institution, by referral or
otherwise of any claim, demand, action or cause of action against Client, Client's agents,
successors and assigns. In addition, the Firms will require all experts and consultants
retained pursuant to this Agreement to execute an agreement containing a provision, in a
form satisfactory to Client, prohibiting them from releasing confidential information of
Client.
14. The Firms and Client agree that the Firms will not communicate with the media, issue press
releases, or make any other public comments. The Firms will keep Client apprised of
contacts from the media and to the extent practicable will consult with Client prior to
making any statement related to the Client's case. The Firms will use their best efforts to
control public statements made by any public water providers involved as plaintiffs in
PFOA/PFOS litigation. If the Firms or another plaintiff makes public statements or
comments on behalf of Client, Client may withdraw from the litigation without owing
Attorney any costs or fees, and the attorney-client relationship would be terminated at that
time. This paragraph applies only to communications that occur after the Effective Date of
this Agreement as defined in paragraph 15.
15. The effective date of this agreement will be the date when it is executed by Client. This
Agreement will, however, apply to services provided by the Firms on this matter before
its effective date.
Executed on the date first above written.
CLIENT FRAZER PLC
By: By:
VENTURA LAW
By: