2010-246ORDINANCE NO.. 2010-246
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND AMENDMENT TO
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH MICHAEL J. WHITTEN &
ASSOCIATES F/K/A/ THE WHITTEN LAW FIRM, P.C. FOR PROFESSIONAL LEGAL
SERVICES RELATING TO LITIGATION ENTITLED: THE UNIVERSITY OF NORTH
TEXAS APPELLANT V. THE CITY OF DENTON, TEXAS, APPELLEE, CAUSE NO. 02-
09-00395-CV NOW PENDING BEFORE THE FORT WORTH COURT OF APPEALS;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR
RETROACTIVE APPROVAL THEREOF; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary, appropriate, and in the public interest
to continue to engage the law firm of Michael J. Whitten & Associates, Denton, Texas
("Whitten") to provide further professional legal services relating to the above numbered and
entitled litigation; and
WHEREAS, the City Manager, within his delegated authority, has previously approved
the original Agreement for Professional Legal Services with the Firm in the amount not-to-
exceed $35,000 on February 13, 2008; thereafter, on May 18, 2009 the First Amendment to
Professional Services Agreement, in the amount not-to-exceed another $40,000 was approved by
the Public Utilities Board, and on June 1, 2009 the City Manager, within his delegated authority;
totaling a not-to-exceed aggregate of $75,000; and
WHEREAS, the City has prevailed in its lawsuit for a declaratory judgment in the 158th
Judicial District Court, in and for Denton County, Texas; the State of Texas (the University of
North Texas) then filed its appeal to the Fort Worth Court of Appeals then, where it is now
pending oral argument on October 6, 2010; and
WHEREAS, City staff has reported to the City Council that there is a continued and
substantial need for the hereinabove described professional legal services, and that limited City
staff cannot adequately perform the legal services with its own personnel considering its
complexity; and Staff hereby recommends that the City Council enter into a Second Amendment
to Agreement for Professional Services ("Second Amendment") for a further amount, not-to-
exceed an additional $40,000, totaling an aggregate of $115,000; and
WHEREAS, on the 27th day of September, 2010 the Public Utilities Board unanimously
approved the Second Amendment by a vote of 6-0; 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 Michael
J. Whitten & Associates is appropriately qualified under the provisions of the law to continue to
be retained as outside legal counsel for the City in this matter; and
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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 Second Amendment; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: The recitations in the preamble are true and correct and are incorporated by
reference herewith as a part of this ordinance.
SECTION 2: The City Manager is hereby authorized to execute a "Second Amendment
to Agreement for Professional Legal Services" (the "Second Amendment") with the law firm of
Michael J. Whitten & Associates, Denton, Texas for continued professional legal services in the
further not-to-exceed amount of $40,000, which aggregates a total not-to-exceed amount of
$115,000, relating to above numbered and entitled litigation, in substantially the form of the
Second Amendment attached hereto as Exhibit "A" and which is incorporated herewith by
reference.
SECTION 3: The award of this Agreement is on the basis of the demonstrated
competence and qualifications of Whitten and the ability of Whitten to continue to perform the
professional legal services needed by the City for a fair and reasonable price.
SECTION 4: The expenditure of funds as provided in the attached Second Amendment
to Agreement for Professional Legal Services is hereby authorized; and the previous
expenditures made regarding this litigation are hereby ratified, confirmed and approved.
SECTION 5: This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of h&okz '2010.
MARK A.\BURR'G HS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
B
COVED AS TO LEGAL FORM:
CA BURGESS, CITY ATTQRN]
By:
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STATE OF TEXAS §
COUNTY OF DENTON §
SECOND AMENDMENT TO
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AG EMENT (h reafter called the "Second Amendment") is made and entered
into this thej-~day of , 2010, by and between Michael J. Whitten &
Associates, f/k/a The Whitten Law Firm, P.C., 218 North Elm, Denton, Texas 76201, acting by
and through Michael J. Whitten, Attorney, having full authority to execute this Agreement on
behalf of the firm, hereinafter referred to as "Consultant"; and the City of Denton, Texas, a
Texas municipal corporation, 215 East McKinney Street, Denton, Texas 76201, acting by and
through its duly authorized City Manager, George C. Campbell, hereinafter referred to as "City."
WHEREAS, the City finds it appropriate to continue to employ experienced outside
legal counsel to perform professional legal services in the area of trial and appellate law.
Consultant is an experienced professional practicing in Denton, Texas, in a highly specialized
area of law; and the City wishes to continue to retain Consultant to represent the City of Denton,
Texas, and more specifically, its electric utility, Denton Municipal Electric; and
WHEREAS, the Consultant is willing to continue to perform such services in a
professional manner as an independent contractor; and the City desires to continue the
employment of Consultant to render professional services in connection therewith, and the
Consultant is willing to provide such services; and
WHEREAS, the Consultant and City find it necessary to amend the previous Agreement
for Professional Legal Services heretofore executed by George C. Campbell, City Manager on
the 13th day of February 2008, in the amount of not-to-exceed $35,000; and that certain First
Amendment, hereby approved by the Public Utilities Board on the 18th day of May, 2009, and
heretofore executed by George C. Campbell, City Manager on the 1St day of June, 2009; for the
sole purpose of adding $40,000 in additional funds to the purchase order (aggregating $115,000),
as the litigation is not completed; and
WHEREAS, the Public Utilities Board approved this Second Amendment to Agreement
for Professional Legal Services (the "Second Amendment") on the 27th day of September, 2010
by a vote of and
NOW, THEREFORE, in consideration of the promises and mutual obligations set forth
herein, and for good and valuable consideration, the City and Consultant do hereby mutually
AGREE as follows:
I.
The provisions of Paragraph 3.A. entitled "Compensation and Method of Payment" in the
original Agreement for Professional Legal Services referenced above, is hereby amended as
follows:
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Insert the following sentence:
"This Second Amendment provides for a further not-to-exceed amount of $40,000,
aggregating a grand total of $115,000."
II.
The Consultant and the City agree that, except as specifically provided for by this Second
Amendment to Agreement for Professional Legal Services, that all of the terms, covenants,
conditions, agreements, rights, responsibilities, and obligations of each party hereto as heretofore
stated in the original Agreement for Professional Legal Services and the First Amendment, shall
be, and they will remain in full force and effect.
IN WITNESS WHEREOF, the City of Denton, Texas, has executed this Second
Amendment in four (4) original counterparts by and through its duly-authorized City Manager;
and Consultant has executed ~ this Agreement by and through its duly-authorized officer, on this
the ~I day of.&4d& , 2010.
"CITY"
CITY OF DENTON
A Texas Municipal Corporation
By: ~
GEORGE C. CAMP ELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: W~,_
APP VED AS O LEGAL FORM:
ANITA BURGESS, CITY AT~QRNEY
By:
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"CONSULTANT"
MICHAEL J. WHITTEN & ASSOCIATES, P.C.
f/k/a THE WHITTEN LAw FIRM, P.C.,
A Texas Professional Corporation
By:
ATTEST:
By: