2006-103FILE REFERENCE FORM 2006-103
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First Amendment to Agreement [original is attached] 06/15/07 JR
ORDINANCE NO. 2006- /0,13
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH TERRY
D. MORGAN & ASSOCIATES, P.c. FOR PROFESSIONAL LEGAL SERVICES RELATING
TO ISSUES REGARDING THE DENTON DEVELOPMENT CODE AND THE
COMPREHENSIVE PLAN; AUTHORIZING THE EXPENDITURE OF FUNDS NOT TO
EXCEED TWENTY FIVE THOUSAND DOLLARS ($25,000) THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary, appropriate, and in the public interest
to engage the law firm of Terry D. Morgan & Associates, P.C., to provide professional legal
services relating to issues regarding the Development Code and the Comprehensive Plan; and
WHEREAS, the City has previously retained and engaged the professional legal services
of Terry Morgan & Associates on numerous occasions, and it has operated under numerous other
professional services agreements with the City regarding legal representation, and has
demonstrated considerable expertise of relevant issues concerning the City; and
WHEREAS, City staff has reported to the City Council that there is a substantial need for
the hereinabove described professional services, and that limited City staff cannot adequately
perform the specialized legal services with its own personnel; 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. The recitations in the preamble are true and correct, and are incorporated
herewith as part of this ordinance.
SECTION 2. The Interim City Manager is hereby authorized to execute an Agreement
for Professional Legal Services with Terry Morgan & Associates, P.C., for professional legal
services relating to issues regarding the Development Code and the Comprehensive Plan, in
substantially the form of the Contra'lt. for Professional Legal Services attached hereto and
incorporated herein by reference.
SECTION 3. The expenditure offunds, is hereby authorized, as provided in the attached
Agreement for Professional Legal Services. The Interim City Manager, or his designee, is
authorized to exercise all rights and duties of the City of Denton under the Agreement.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the / UIz. day of
-
IJ~
,2006.
C~~cL
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
By:
S:\Our DocllmenISIOrdinancesl06\tcIT)' morgan-dev code onj;nance,doc
2
STATE OF TEXAS §
COiNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into as of the 18`h day of April, 2006, by and
between the Law Offices of TERRY MORGAN & ASSOCIATES, P.C. (hereafter referred to as
"Consultant"), with Teny Morgan having full authority to execute this Agreement, with an office
address of 1201 Elm Street, Suite 4800, Dallas, Texas 75270; and the CITY OF DENTON, a Texas
Municipal Corporation, 215 East McKinney, Denton, Texas 75201 (hereafter refetted to as the
"City"), with the City Manager having full authority to execute this Agreement on behalf of City.
WITNESSETH:
WHEREAS, City finds it necessary to employ outside legal counsel to perform
professional legal services regarding Denton Development Code and Comprehensive Plan issues;
and
WHEREAS, City has previously engaged the professional services of Consultant and City
staff is well-satisfied with the quality of his work and its affordability; and
WHEREAS, Consultant is willing to perform such services in a professional manner as an
independent contractor; and has competently and efficiently performed similar services for City in
the past years; and City has selected Consultant on the basis of his demonstrated competence and
qualifications necessary to perform the needed services; and
WHEREAS, City desires to engage Consultant to render the professional services in
connection therewith, for a fair and reasonable price; consistent with, and for a fee not higher than
the recommended practices and fees published by the applicable professional associations in the
State of Texas; and such fees do not exceed any maximum provided by law; and Consultant is
willing to provide such services;
NOW, THEREFORE, in consideration of the promises and mutual obligations herein, City
and Consultant do hereby mutually AGREE as follows, to wit:
I. Scope of Services: Consultant shall perform the following services in a professional
manner working as an independent contractor not under the direct supervision and control of City:
A. Services to be provided:
To provide professional legal services and providing legal advice with respect to
Denton Development Code and Comprehensive Plan issues.
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It is understood that if it becomes necessary to require more aggressive or extensive
efforts, or additional involvement of Consultant is required, City and Consultant shall
provide for an amendment to this Agreement to provide for additional professional
legal services and fees.
B. Consultant shall perform all the services required by this Agreement in a reasonable
and timely fashion, and shall complete them in compliance with schedules established
by City through its City Attorney, as appropriate to carry out the terms and conditions
of this Agreement.
II. Term: This Agreement shall be effective as of April 18, 2006; and shall terminate
either upon the completion of the professional services provided for herein; or upon the exhaustion
of all professional fees provided for hereunder, whichever event shall first occur. This Agreement
may be sooner terminated in accordance with the provisions hereof. 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 City, through its City Attorney, or
his designee.
III. Compensation and Method of Payment:
A. Consultant shall charge the following fees for its professional services provided to
City hereunder, based upon the following hourly billing rates for the attorneys and
support staff invobed in this matter: ,
Staff
Terry Morgan
Partners (GUCL)
Associates (GUCL)
Hourly Rate
$225.00
$175.00 to $250.00
$125.00 to $140.00
City agrees and understands that Terry Morgan is of counsel with the firm of Goins,
Underkofler, Crawford & Langdon. Consultant and City agree that all charges for the
legal services hereunder for this engagement, including expenses as set forth in Section
III.C. below, shall not exceed $25,000.00.
B. Consultant shall endeavor to reasonably attempt to reduce costs by utilizing other
qualified associates and paralegals ,wherever feasible or possible. Consultant shall bill
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 anentry-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 incur-ed by Consultant in performing the professional services provided for
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under this Agreement. Professional fees shall be billed in minimum one-tenth (1/10)
hour increments.
C. City shall either pay directly or reimburse Consultant, as the case may be, for
reasonable and necessary actual out-of-pocket expenses, including but not limited to,
long-distance telephone, telecopier, reproduction, postage, overnight courier, and
transportation and travel. All copies will be charged at the rate of $0.15 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 City to reduce costs if bulk copying is
necessary. or appropriate. The parties agree that the charges for outgoing telecopier
from Consultant shall be $0.50 per page and that there will be no charge by Consultant
for incoming telecopier.
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 City
by Consultant on or about the 15th day of each month. City shall make payment to
Consultant within 30 days after receipt of an appropriate itemized invoice or statement.
To the extent that any fees or expenses are disputed by City, City shall notify
Consultant within 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 30
days after its receipt of the invoice or statement. All reimbursable expenses, including,
but not necessarily limited to travel, lodging, and meals, shall be paid at the actual cost,
pursuant to the terms, conditions, and limitations set forth herein. All invoices or
statements shall be a reviewed and approved by the City Attomey, or his designee.
E. It is understood and agreed that Consultant shall work under the coordination and
general supervision of the City Attorney, or his designee.
F. 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 City Manager, City of Denton,
Texas, 215 East McKinney, Denton, Texas 76201 or to his designee; as to invoices and
statements, to Ed Snyder, City Attorney, at the same address, as to City; and to Terry
Morgan, 1201 Elm Street, Suite 4800, Dallas, Texas 75270, as to Consultant. When so
addressed, the notice, invoice, statement and/or payment shall be deemed given upon
the deposit of same in the United States 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 iiiade 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 in the State of Texas. For the purpose of this Agreement, the key
Page 3
persons who will be performing most of the work hereunder shall be Terry Morgan. It
is understood that Terry Morgan is of counsel to Goins, Underkofler, Crawford &
Langdon ("GUCL"), and works closely in association with attorneys of that firm.
Nothing herein shall limit Consultant from using other qualified and competent
members of the firm or of GULL to perform the services required herein if such
delegation is reasonably appropriate and properly protects City's interests.
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 City shall retain ownership and a property interest therein. If
this Agreement is terminated at any time for any reason prior to payment to 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 City upon request and without restriction on their use or further compensation to
Consultant.
V. Establishment and Maintenance of Records: Full and accurate records shall be
maintained by 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 Consultant, there shall be made available to City all of Consultant's records
with respect to all matters covered by this Agreement. Consultant shall permit 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.
VII. Accomplishment of Project: 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, 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 City.
VIII. Indemnity and Indeaendent Contractor Relationshiu:
A. Consultant shall perform all services as an independent contractor not under the direct
supervision and control of City.. Nothing herein shall be construed as creating a
relationship of employer and employee between the parties. 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 Consultant or from any breach of
Consultant's obligations under this Agreement. Nothing herein constitutes a waiver of
any rights or remedies City may have to pursue under either law or equity, including,
without limitation, a cause of action for damages, a loss to City resulting from
Consultant's negligent errors or omissions, or breach of contract, and all such rights
and remedies are expressly reserved.
Page 4
B. Consultant shall maintain and shall. be caused to be in force at all times during the term
ofthis Agreement, a legally binding policy of professional liability insurance, presently
listed by Best Rated Carriers, with a rating of "B+" or above (with acut-through
agreement), 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 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, Consultant hereby
covenants to immediately notify City in writing thereof; and in such event, Consultant
shall, prior to the effective date of change or cancellation, serve a substitute policy
furnishing the same or higher amount of coverage. Consultant shall provide a copy of
the declarations page of such policy to City through its City Attorney simultaneously
with the execution ofthis Agreement.
IX. Termination of Agreement:
A. In connection with the work outlined in this Agreement, it is agreed and fully
understood by Consultant that 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 City 15 days written notice that
Consultant is no longer in a position to continue representing City. Consultant shall
invoice City for all work satisfactorily completed and shall be compensated in
accordance with the terms ofthis Agreement. All reports and other documents, or data,
or work related to the project shall become the property of City upon termination ofthis
Agreement.
B. This Agreement maybe 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 maybe 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 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 City to pay for
any work which is unsatisfactory or which is not submitted in compliance with the
terms ofthis Agreement.
X. Alternate Dispute Resolution: Consultant and City agree that, if necessary, they will
use their respective 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.
Page 5
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 City and
Consultant.
XII. Compliance with Laws: 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.
XIII. 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.
XIV. Discrimination Prohibited: In performing the services required hereunder,
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 City. Consultant shall inform 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 perfonned by 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: 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 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.
XVIII. Responsibilities for Claims and Liability: Approval by City shall not constitute
nor be deemed a release of the responsibi]ity and liability of Consultant for the accuracy and
Page 6
competency of its work; nor shall such approval be deemed to be an assumption of such
responsibility of City for any defect in any report or other documents prepared by Consultant, its
shareholders, associates, employees, officers, or, agents in connection with this engagement.
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 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.
XXI. Binding 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
original counterparts by and through its duly authorized Interim City Manager; and Consultant has
executed this Agreement by and through its duly authorized undersigned Partner; dated this the
.3~ day of , 2002
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By:
GEORGE .CAMPBEL
CITY MANAGER
Page 7
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FO~
EDWIN M. SNYDEI~,CITY A'GTORNEY
By:
TERRY MORGAN & ASSOCIATES, P.C.
By: 6Z
TERRY ORGAN
ATTEST:
[If necessary]
By:
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Page 8
STATE OF TEXAS §
COUNTY OF DENTON §
FIRST AMENDMENT TO AGREEMENT
FOR PROFESSIONAL LEGAL SERVICES
THIS FIRST AMENDMENT TO THAT AGREEMENT made and entered into the 18`n
day of April, 2006, ("Base Contract") by and between The Law Offices of Terry Morgan & ,
Associates, P.C., 1201 Elm Street, Suite 4800, Dallas, Texas 75270, hereinafter referred to as
"Consultant", and the City of Denton, a Texas municipal corporation, 215 East McKinney, .
Denton, Texas 76201, hereinafter referred to as "City".
WITNESSETH:
SECTION 1. Section IILA. "Compensation and Method of Payment" of the Base
Contract is hereby amended to read as follows:
A. Consultant shall charge the following fees for its professional services provided to
City hereunder, based upon the following hourly billing rates for the attorneys and
support staff involved in this matter:
Staff
Terry Morgan
Partners (GUCL)
Associates (GUCL)
Hourly Rate
$250.00
$175.00 to $250.00
$125.00 to $140.00
City agrees and understands that Teny Morgan is of counsel with the firm of Goins,
Underkofler, Crawford & Langdon. Consultant and City agree that all charges for the
legal services hereunder for this engagement, including expenses as set forth in Section
ID.C. below, shall not exceed $55,000.00. With the prior approval of City, Consultant
may employ sub-consultants to perform the services outlined in this Agreement.
SECTION 2. Save and except as amended hereby, all the remaining sections, paragraphs,
sentences, clauses, and phrases of the Base Contract shall remain in full force and effect.
IN WITNESS W EREOF, the City of Denton, Texas has caused this First Amendment
to be ex cuted by its ul authorized City Manager; and Consultant has executed on this the
_day of ~ , 2007.
Page 1
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: Gt-
GEORGE .CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ° ~ .~ , l ~l ~
APPROVED AS TO LEGAL FORM:
EDP
By:
TERRY MORGAN & ASSOCIATES, P.C.
By:
T RRY MO ,ESQ.
ATTEST:
[If necessary]
By:
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Page 2