2009-127ORDINANCE NO. 2009--/Z /
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 THE LAW FIRM OF
WALKER SEWELL, LLC FOR PROFESSIONAL LEGAL SERVICES RELATING TO
LITIGATION STYLED: TEXAS MUNICIPAL POWER AGENCY VS. CITY OF BRYAN
TEXAS. CAUSE NO. 28,169 PENDING IN THE 506TH JUDICIAL DISTRICT COURT IN
AND FOR GRIMES COUNTY, TEXAS; EX PARTE TEXAS MUNICIPAL POWER
AGENCY, CAUSE NO. D-1-GN-08-003426, NOW PENDING BEFORE THE 250TH
JUDICIAL DISTRICT COURT IN AND FOR TRAVIS COUNTY, TEXAS; AUTHORIZING
THE EXPENDITURE OF FUNDS THEREFOR; 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 Walker Sewell, LLP, Dallas, Texas to provide further
professional legal services relating to the above numbered and entitled litigation, as well as other
TMPA related issues; 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 $90,000 on September 22, 2008, effective from and after September 18, 2008; then after
litigation and related matters moved forward, the City Council, by Ordinance No. 2009-058
approved the First Amendment to Agreement for Professional Legal Services with the Firm, on
the 3`d day of March, 2009 in a further amount not-to-exceed an additional $105,000, totaling a
not-to-exceed aggregate of $195,000; and
WHEREAS, City staff has reported to the City Council that now two of the lawsuits
brought by the City of Bryan, Texas have been dismissed, and the bond validation lawsuit in
Travis County has been tried, and a Judgment is now pending in that case. 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 the diverse locations of the cases; and Staff hereby recommends that the City
Council enter into a Second Amendment to Agreement for Professional Services for a further
amount, not to exceed an additional $200,000, totaling an aggregate of $395,000; 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 Walker
Sewell, LLP is appropriately qualified under the provisions of the law to continue to be retained
as outside legal counsel for the City; 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 Second Amendment; NOW, THEREFORE,
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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
Walker Sewell, LLP of Dallas, Texas for continued professional legal services in the further not-
to-exceed amount of $200,000, which aggregate not to exceed $395,000, relating to above
numbered and entitled litigation, and in other related TMPA activities, in substantially the form
of the Second Amendment attached hereto as Exhibit "A" and incorporated herewith by
reference.
SECTION 3: The award of this Agreement is on the basis of the demonstrated
competence and qualifications of Walker Sewell, LLP and the ability of Walker Sewell, LLP 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 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 Z- day of 12009.
ATTEST:
JENNIFER WAL'
By:
ANITA BURGESS,
By:
SECRETARY
LEGALFORM:
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THE STATE OF TEXAS §
COUNTY OF DENTON §
SECOND AMENDMENT TO AGREEMENT FOR
PROFESSIONAL LEGAL SERVICES
THIS SECOND AMENDMENT to that certain "Agreement for Professional
Legal Services (hereafter the "Agreement") in the original not-to-exceed amount of
$90,000 was approved by the Public Utilities Board and thereafter approved within the
delegated authority of the City of Denton City Manager; and said Agreement was
heretofore entered into by and between the City of Denton, Texas, a Texas Municipal
Corporation with its offices at 215 East McKinney Street, Denton, Texas 76201
(hereafter referred to as "CITY"); and the law firm of Walker Sewell, LLP., whose
principal office is at 901 Main Street, Suite 5000, Dallas, Texas (hereafter referred to as
the "CONSULTANT") on the September 22, 2008, to be ratified and effective from and
after September 17, 2008; and
CITY and CONSULTANT further amended said Agreement for the first time for
the purpose of providing additional funds to add to the previous approved Agreement for
further legal services to be performed by CONSULTANT regarding the same
engagements wherein CONSULTANT is representing the City, regarding numerous
contested cases and hearings brought by the City of Bryan, Texas and the Texas
Municipal Power Agency ("TMPA") in several counties, involving the three Northern
Cities (the Cities of Denton, Garland and Greenville) as Defendants and Intervenors; and
these matters have steadily progressed, resulting in two dismissals of the Northern Cities
and a completed trial of the bond validation case; which First Amendment to Agreement
for Legal Services (hereafter "First Amendment") was in the further not-to-exceed
amount of $105,000, and which Agreement was approved by the City Council on March
3, 2009, by Ordinance No. 2009-058; totaling a not to exceed aggregate of $195,000; and
It is now necessary and appropriate that CONSULTANT continue representation
of the City of Denton through the entry of judgment and beyond regarding the remaining
pending cases that involve Denton, the City of Bryan, Texas and TMPA, that are now
pending, as well as for any potential appeal that may be made by the City of Bryan,
Texas or TMPA. City and CONSULTANT estimate at this time that this case will
probably require at least $200,000 in additional funds to be added to the existing not-to-
exceed amount authorized of $195,000 First Amended Agreement, by this Second
Amendment to Agreement for Professional Legal Services" (hereafter "Second
Amendment") thereby constituting an aggregate amount of not-to-exceed $395,000; and
which Second Amendment was approved by the Public Utilities Board on the 18`h day of
May, 2009 by a vote of 6-0; and.
NOW THEREFORE, the CITY and CONSULTANT (hereafter collectively
referred to as the "Parties"), in consideration of their mutual promises and covenants, as
well as for other good and valuable considerations, do hereby AGREE to the following
Second Amendment, which amends the following terms and conditions of the said
Agreement, to wit:
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I.
The provisions of Paragraph C., Third Paragraph of the Agreement are hereby
amended and in all things deleted, with the following language to be the new provisions
of Paragraph C, Third Paragraph of the Agreement, which is hereby substituted, as
follows, to wit:
"CONSULTANT estimates, as it is presently unknown about the extent of the
further involvement of the City in this TMPABryan-related multi-party litigation, and
City agrees that all charges for the legal services hereunder, including reasonable out-of-
pocket expenses shall not exceed the additional amount of $200,000 authorized in this
Second Amendment for Professional Legal Services, and thereby a total amount of not-
to-exceed $395,000 in the aggregate is authorized. The City Manager is hereby
authorized to expend the funds."
II.
The Parties hereto agree, that except as specifically provided for by this Second
Amendment, that all of the terms, covenants, conditions, agreements, rights,
responsibilities, and obligations of the Parties, set forth in both the Agreement and First
Amendment shall be and will remain in full force and effect.
IN WITNESS WHEREOF, the City of Denton, Texas and the law firm of Walker
Sewell, LLP., have each executed this Second Amendment to Agreement for Professional
Legal Services in four (4) original counterparts, by and through their respective duly
authorized representatives and officials on this the 2 day of , 2009; but
to be effective, ratified and confirmed from and after the 1 I`h day o February, 2009.
"CITY"
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: `
GEOR E C. CAMPB LL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
"CONSULTANT"
WALKER SEWELL LLP
Texas Limited Liability Partnership
By:
W. WALKER, Partner