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1999-076 NOTE' First Amendment - Ordinance No 99-435 ORDINANCE NO qq -- ~ 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 TERRY MORGAN & ASSOCIATES PERTAINING TO REPRESENTATION OF THE CITY IN LITIGATION AND THE PROVISION OF RELATED LEGAL SERVICES RESPECTING THE CITY OF DENTON MUNICIPAL UTILITIES' PROVISION OF WATER AND WASTEWATER SERVICE TO CUSTOMERS WITHIN ITS CITY LIMITS AND ITS EXTRATERRITORIAL JURISDICTION, AUTHORIZING LEGAL SERVICES FOR REPRESENTING THE BOARD OF ADJUSTMENT AND IN OTHER LAND USE MATTERS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and in the pubhc interest to engage the law firm of Terry Morgan & Associates, of Dallas, Texas (the "Firm") to provide professional legal services to the City pertmnmg to representation of the City m htigatlon and the provision of related legal services respecting the City of Denton Municipal Utilities' provision of water and wastewater service to customers within ~ts city hmits and ~ts extraterritorial jurisdiction, ~nvolvmg the preservation of, and the defense of the C~ty's legal rights and ~nterests as a Home- Rule City, as a utility service provider, and otherwise, against any person or entity unlawfully interfering with the City m its pursmts, and WHEREAS, the City, In order to ascertain its legal rights and alternatives, in early February 1999, requested that the Firm investigate the facts and circumstances involved in tNs matter and adwse the City staff and the Cottncll respecting the same Accordingly, ~t is appropriate the Contract for Professional Legal Services with the Firm should be ratified, and should be made retroactively effective m order to properly compensate the Firm for its work performed heretofore at the specific instance and request of the C~ty, which work has directly benefited the City, and WHEREAS, it m appropriate for the City to reauthonze and ratify the Firm's representation of the City in the Sonh. et al vs City of Denton Zoning Board of Adjustment ease and in other land use matters, and to retroactively approve any services previously performed, as provided for m smd Contract, and WHEREAS, the City Council has provided m the City Budget for the appropriation of funds to be used for the purchase of the foregoing professional services, as set forth an the Contract for Professional Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the C~ty Manager m hereby authorized to execute a Contract for Professional Legal Services with the law firm of Terry Morgan & Associates, Dallas, Texas for professional legal services pertammg to the heremabove-descnbed matters involving the City of Denton Mtmlcapal Utlhtaes, the City of Denton Zomng Board of AdJustment and for related land use matters, m substantially the form of the Contract for Professional Legal Services attached hereto and incorporated herewith by reference SECTION II That the award of flus Agreement ~s on the basis of the demonstrated competence and quahficataons of the Farm, and the abthty of the F~rm to perform the professional legal services needed by the C~ty for a fmr and reasonable price SECTION III That the expenditure of funds as provided for in the attached Contract for Professional Legal Services ~s hereby anthonzed SECTION IV That the Contract for Professional Legal Services is hereby ratified and all previous legal services performed by the Firm that fall within the contractual scope of services are retroactively approved SECTION V. That th~s ordinance shall become effective immedmtely upon its passage and approval PASSED AND APPROVED thas the r~/~ ~ dayof ~.~ZA~L~ ,1999 JA~,~LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By /~1~ ~ ~ S \Our Documents\Ordmances\99\Ten~ Morgan W WW L~t PSA doe CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § Thas AGREEMENT, made and entered anto thas the 2nd day of March, 1999, by and between TERRY MORGAN & ASSOCIATES, 1930 Thanksgawng Tower, 1601 Elm Street, Dallas, Texas 75201, wath Terry Morgan, , having full authority to execute this Agreement on behalf of Terry Morgan & Associates, heremafter referred to as "Consultant", and the CITY OF DENTON, a Texas Mumcapal Corporataon, 215 E McKmney, Denton, Texas 76201, heremafter referred to as "Caty", acting by and through ~ts duly-authorized Caty Manager WITNESSETH WHEREAS, the City finds it necessary to employ outside legal counsel to perform professmnal legal services m specaahzed areas of law, Plarmlng and Zomng Law, Litigation, and Water and Wastowater Utlhty service assues, pertalmng to the contemplated htagataon to be commenced by the Caty of Denton, and other related legal servmes and representation pertmmng to Denton Mumeapal Uttht~es' provasmn of water and wastewater service to customers within ats Caty hmltS and ars extratemtonal junsdletmn, and to preserve and defend the Caty's legal nghts and interests as a Home-Rule Caty, as a utthty service provader, and otherwise, against any person or entaty unlawfully anterfenng wath the City m ~ts pursmts, and WHEREAS, the Consultant as willing to perform such servmes m a professional manner as an independent contractor, and WHEREAS, the Caty desires to engage the Consultant to render the professional servmes an connectmn therewith, and the Consultant as willing to provide such servmes NOW, THEREFORE, m consaderatlon of the prommes and mutual obhgatmns herem, the parties hereto do hereby mutually AGREE as follows I Scope ofServmes Consultant shall perform the followang services ~n a profesmonal manner workang as an independent contractor not under the darect supervlsaon and control of the Caty A, Servmes to be provided 1 The Consultant shall provade legal adwce, support and representataon respectang the mtmmon of Denton County Fresh Water Supply Dastnct No lA and Denton County Fresh Water Supply Dastnct No 5 ~nto the corporate boundaries, extraterritorial junsdlctaon, and certaficated water and sewer servme areas of the C~ty of Denton, w~thout not~ce and without the Contract For Professional Legal Services - Page 1 consent of the City The representation may include filing, prosecuting, and settling actions on behalf of the City m state thstnct court and at the Texas Natural Resources Conservation Commission, attending any meetings and conferences as requested by the City an relation to this matter, and consulting with and advising the City regarding all pertinent Issues related to this matter Consultant shall also consult, as requested, with the City Council, City Manager, the Deputy City Manager, the Assistant City Manager for Utilities, the Director of Planning and Community Development, the Assistant Director of Water Utthtles, the City Attorney, and any other designated City staff member respecting any and all aspects of the services to be performed under this Agreement This proj eot includes both htlgatlon legal services and non-htlgatlon legal services 2 This Agreement also covers the following additional matters a Legal services rendered and to be rendered by Consultant to the City in the following pending litigation, from the mceptlon of such litigation, through and including the disposition of any motion for new trial Edward Soph. et al v City of Denton Board of Aqljustment, Cause No 98-10388-16, in the 16th Judicial District Court in and for Denton County, Texas, which services are for any amounts billed for an amount over and above the not to exceed amount of the existing contract with Consultant for such litigation Consultant and the City agree that should any further legal services be needed by City subsequent to the disposition of any motion for new trial for such litigation, such as for legal services incident to any appeal, then the City and Consultant intend to enter into a new Contract for Professional Legal Services b Consultant shall provide the City with legal advice and services respecting land use issues requested by members of the City staff, as well as any advice requested by the City respecting annexation in connection with utility matters pertalnmg to the litigation between the City and the two Fresh Water Supply District defendants ldentffied in paragraph I A 1 heremabove 3 Consultant shall perform all the professional services required in a timely fashion, and shall complete same in compliance with schedules established by the City through its City Council, City Manager and/or City Attorney, through discussions with the Consultant, as appropriate to carry out the terms and conditions of this Agreement II Term This Agreement shall be for a term of one (1) year, beginning effective February 1, 1999 and ending on January 31, 2000 This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence of this Agreement, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiottsly as possible dunng the term of this Agreement, and to meet the schedules established by the City, through its City Council, City Manager or City Attorney, or as the progress of this matter may require As litigation is contemplated under the terms of this engagement, Consultant and the City reasonably expect that further amendment(s) to this Agreement will be entered into by them, so long as such contemplated htlgatlon is pending and not fully disposed of Contract For Professional Legal Services - Page 2 III~ Compensation and Method of Payment A Consultant shall charge the following fees for ~ts professional services hereunder, based on the following hourly bflhng rates for the attorney(s) involved in this matter Terry Morgan [Litigation servmes] $225 00 per billable hour Terry Morgan [Non-htlgataon services] $200 00 per billable hour Associate Attorneys $125 00-$150 00 per billable hour (Additional attorneys may be added to th~s engagement when approved by Consultant and City at such hourly fees as is agreed to ~n writing ) Attorney time shall be billed at one-tenth (1) hour mlmmum bllhng increments B Consultant will attempt to reduce costs whenever feasible by utahzmg qualified pnnclpals, associates, paralegals, and law clerks Consultant shall bill the City through the submmslon of itemized mvmces, statements, and other documentation, together with supportmg data ~nd~catlng 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 detmls of all services rendered, along with specific description and supporting documentation, ff available, respecting any reasonable and necessary out-of-pocket expenses incurred C Consultant and the City agree that all charges for the legal services hereunder, m~ludlng reasonable out-of-pocket expenses, shall not exceed One Hundred Thousand DOllars ($100,000 00) The parties agree that the establishment of this not-to-exceed figure by the parties is based upon a reasonable, good fatth estimate of the expected legal services to be rendered by Consultant, due to possible unexpected contingencies as well as the uncertatnties of litigation If it appears dunng the term of this Agreement that Consultant's fees to properly accomphsh the work provided in the scope of services, may elceed $100,000 00, Consultant shall give notice ~n writing to the City Manager and the Clty Attorney of same Such notice shall provide an itemization of the expected hours and expenses needed to complete the scope of services based on each category or task yet to be completed on the engagement The City accepts no responsibility for any work performed dunng the term of flus Agreement in excess of $100,000 unless the City Council, by resolution or ordinance, authorizes such expenditure D. The C~ty shall e~ther pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopler, reproduction, overmght courier, and travel All copies v~ll be charged at the rate of ten cents ($10) per copy for copies made Wlthln Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates or by the City to reduce costs if bulk copying is necessary The Contract For Professmnal Legal Services - Page 3 parties agree that the charges for outgmng telecop~es from Consultant shall be twenty- five cents ($ 25) per page and that there will be no charge by Consultant for mconnng telecoples E The parties ant~clpate lnvomes or statements for servmes will be generated on a monthly basis and that said mvolces or statements will be sent on or about the 1st day of each month The City shall make payment to the Consultant w~th~n thirty (30) days of the satisfactory completion of services and receipt of an itemized ~nvmce or statement All reimbursable expenses, including, but not necessarily hmlted to travel, lodging, and meals, shall be prod at the actual cost, pursuant to the terms, conthtlons, and limitations herelnabove set forth All mvolces and bills shall be approved for payment by the City Attorney and the Assistant City Manager for Utdltms F It ~s understood that the Consultant shall work w~th the coorthnat~on and general supervision of the Assistant City Manager for Utlhtles or his designee, and the C~ty Attorney G All notices, billing statements and ~nvomes shall be made ~n wnt~ng and may be given by personal delivery or by mml Notices and invoices sent by marl shall be addressed to Herbert L Prouty, City Attorney, 215 E McKanney, Denton, Texas 76201 When so addressed, the notice, lnvmce, and/or payment shall be deemed given upon deposit m the United States Mml, postage prepmd In all other instances, notices, mvomes, and/or payments shall be deemed g~ven at the time of actual dehvery Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, prowded reasonable wntten notice is g~ven IV Pr0f0~slonal Comnetencv A Consultant agrees that m the performance of these professional servmes, not to commit any error, omission or negligent act which will cause damages to City For the purpose of this Agreement, the key person who will be coorthnat~ng and performing most of the work for Consultant hereunder shall be Terry Morgan However, nothing here~n skall limit Consultant from using other qualified and competent members of its firm to perform the services required herein B All legal documents as well as any legal opinions prepared or obtmned under the terms of this Agreement are mstnunents of service and the City shall retain ownership and a property interest therem If this Agreement ~s terminated at any t~me for any reason prior to payment to the Consultant for work under th~s Agreement, all such documents prepared or obtmned under the terms of the Agreement shall upon termination be delivered to and become the property of the City upon request and w~thout restriction on their use or further compensation to the Consultant Contract For Professional Legal Servmes - Page 4 V Estabhshment and Maintenance of Records Full and accurate records shall be mmntmned by the Consultant at ~ts place of bus~ness w~th respect to all matters covered by thru Agreement Such records shall be mtuntmned for a period of at least three (3) years after receipt of final payment under th~s Agreement VI Audits and Insnect~on At any time dunng normal bus~ness hours and upon reasonable notme to the Consultant, there shall be made avmlable to the C~ty all of the Consultant's records w~th 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 andats of contracts, ~nvo~ces, materials, and other data relating to all matters covered by th~s Agreement VII Accomphshment of Pro~ect Consultant shall commence, carry on, and complete any and all projects wath all practicable d~spatch, ~n a sound, econommal and efficient manner, and, ~n accordance wath the provasaons hereof and all apphcable laws In accomphslung the projects, the Consultant shall take such steps as are appropriate to ensure that the work ~nvolved ~s prop~ly coordmated w~th related work being camed on by the Ctty VIII In~lemm[v and Indenendent Contractor Relatmnshm A Consultant shall perform all servmes as an independent contractor not under the d~rect supervision and control of the C~ty Nothing here~n shall be construed as creating a relationship of employer and employee between the part,es The Caty and Consultant agree to cooperate in the defense of any clmms, action, stat, or proceeding of any k~nd brought by a third party whach may result from or d~rectly or ~nd~rectly arise from any neghgence and/or errors or om~ssaons on the part of the Consultant or from any breach of the Consultant's obhgat~ons under th~s Agreement Consultant agrees to defend, tndemmfy and hold harmless the Ctty and all of ~ts officers, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional habfl~ty pohcy The Consultant agrees to pay all expenses, ancludang but not hm~ted to attorneys' fees, and satisfy all judgments whmh may be ~ncurred or rendered agtunst the Consultant's professional habd~ty ~nsurance pohcy Nothing here~n constitutes a wmver of any nghts or remedies the C~ty may have to pursue under e~ther law or eqmty, lncludang, w~thout hm~tat~on, a cause of action for specffic performance or for damages, a loss to the Caty, resulting from Consultant's neghgent errors or omissions, or breach of contract, and all such nghts and remedies are expressly reserved B Consultant shall mmntmn and shall be caused to be in force at all t~mes dunng the term of th~s Agreement, a legally binding pohcy of professional hablhty ~nsurance, hsted by A M Best Rated Careers, w~th a ratmg of "A-" or above, msued by an ~nsurance carnet approved to do business m Texas by the Texas Department of Insurance Such coverage shall cover any chum hereunder occasioned by the Consultant's neghgent professional act and/or error or omission, ~n an amount not less than One Mdhon Dollars ($1,000,000 00) combined single hmlt coverage occurrence In the event of change or cancellation of the pohcy by the insurer, Consultant hereby covenants to forthwith adwse Contract For Professional Legal Servmes - Page 5 the City thereof, and mn such event, Consultant shall, pnor to the effectmve date of change or cancellatmon, dehver to the City evmdence that subsmute pollctes of mnsurance furmshlng the same coverage have been obtained Consultant shall provmde a copy of such policy or the deelaratmons page of the policy, whmchever ms reasonably satisfactory, to the City through rots City Attorney simultaneously w~th the executmon of this Agreement IX Termmnatlon of A~reement A In connectmon wroth the work outhned ~n this Agreement, mt is agreed and fully understood by the Consultant that the City may cancel or lndefimtely suspend further work hereunder or terminate thins Agreement at any time upon written notme to Consultant, Consultant shall cease all work and labor betng performed under thins Agreement Consultant may terminate th~s Agreement by g~vmg the City fifteen (15) days written notme that Consultant ms no longer mn a posmon to conttnue representmg the Cmty Consultant shall lnvmce the Cmty for all work satisfactorily completed and shall be compensated m accordance wroth the terms of this Agreement All reports and other documents, or data, or work related to the project shall become the property of the Ctty upon termmatmon of thins Agreement B This Agreement may be terminated mn whole or tn part, in writing, by e~ther party m the event of substantml failure by the other party to fulfill rots obhgatlons under this Agreement through no fault of the termmatlng party Provided, however, that no such termmatmon may be affected, unless the other party ts gtven [1] written notmce (dehvered by certffied mml, return receipt requested) of intent to termtnate, and not less than thtrty (30) calendar days to cure the fmlure, and [2] an opportumty for consultation wtth the terminating party prior to termination C Nothmg contmned hereto or elsewhere mn this Agreement shall reqmre the City to pay for any work whmh ms unsatisfactory or which ms not submmtted tn comphance wroth the terms of this Agreement X Alternate Dmsnute Resolution The Consultant agrees that, if necessary, it will use its best efforts to resolve any d~sputes regarding the Agreement through the use of medlatmon or other forms of alternate dmspute resolution set forth mn Chapter 154 of the Texas Cmvfl Praetmce and Remedaes Code (V A T C S ) XI EntmreA~reement Thins Agreement represents the entire agreement and understanding between the parties, and any negotiations, proposals, representations, or oral agreements are intended to be mntegrated heremn and to be superseded by this written Agreement Any supplement or amendment to thas Agreement to be effectmve shall be in wntmng and smgned by the Cmty and the Consultant XII ¢0IBphance wroth Laws The Consultant shall comply wroth all federal, state, and local laws, roles, regulatmns, and ordmnances apphcable to the work covered hereunder as Contract For Professional Legal Servmes - Page 6 they may now read or hereafter be amended, ~nclud~ng but not hnnted to the Texas Disciplinary Rules of Professional Conduct XIII Govemm~ Law For the purpose of determnnng place of agreement and law govermng same, this Agreement ~s entered ~nto m the City and County of Denton, State of Texas, and shall be construed and governed by the laws of the State of Texas Venue and jurisdiction of any stut or cause of action arising under or m connection with th~s Agreement shall lie exclusively m a court of competent jurisdiction s~ttmg m Denton County, Texas XIV Dlsenmination Prohxbated In perfornnng the services required hereunder, Consultant shall not discriminate agmnst any person on the basis of race, color, relig~un, sex, national origin or ancestry, age, or physical handicap XV Personnel A Consultant represents that ~t has or will secure at ~ts own expense all personnel required to perform all the services reqmred under th~s Agreement Such personnel shall not be employees or have any contractual relations w~th the C~ty Consultant shall promptly reform the C~ty of any conflict of interest or any potential conflict of ~nterest that may arise during the term of this Agreement, ~n accordance w~th Consultant's duties and responaibthtles under the Texas D~se~plinary Rules of Professional Conduct B All services required hereunder will be performed by the Consultant or under ~ts direct supervision All personnel engaged m work shall be quahfied and shall be authorized or permitted under state and local laws to perform such services XVI Assignability Consultant shall not assign any interest ~n th~s Agreement and shall not transfer any interest m th~s Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the City thereto XVII Severabahty All agreements and covenants contained herein are severable, and ~n the event any of them, w~th the exception of those contained m 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 ~nterpreted as though such lnvahd agreements or covenants were not contained herein XVIII Responslbfl~t~es for Claims and Llablhtv Approval by the City shall not constitute nor be deemed a release of the respunsibihty and hablhty of the Consultant for the accuracy and competency of its work, nor shall such approval be deemed to be an assumption of such responaibthty of the C~ty for any defect in any report or other documents prepared by the Consultant, ~ts employees, officers, agents and or other consultants XIX Modification of A~,reement No waiver or modffcatlon of th~s Agreement or of any covenant, condition, or llm~tatlon here~n contained shall be valid unless m writing and duly executed by the party to be charged therewith, and no ewdence of any waiver or modification Contract For Professional Legal Services - Page 7 shall be offered or received an evidence in any pmceedmg arising between the parties hereto out of or affeetang tins Agreement, or the nghts or obhgatlons of the part, es hereunder, unless such wmver or modification is m wr, tmg, duly executed as aforesmd, and, the partaes further agree that the provisions of this article will not be waived as herean set forth XX Caot, ons The capt, ons of thas Agreement are for mformataonal purposes only and shall not an any way affect the substantave terms or condataons of thru Agreement XXI ~ This Agreement shall be banding upon and inure to the benefit of the parties hereto and their respectave heirs, executors, administrators, legal representatives, successors, and assagns where permatted by flus Agreement XXII Retroactive Effect Tins Agreement as hereby expressly ratified by City and Consultant to provide that all previous legal services performed by the Farm that fall w~thln the contractual scope of services, as defined in paragraph I hereanabove, are retroactively approved hereby IN WITNESS HEREOF, the City of Denton, Texas, has caused thru Agreement to be executed in four (4) onglnal counterparts, by and through its duly-authorized City Manager, and Consultant has executed th~s Agreement by and through its duly-authorized undersigned partner, dated this the 2nd day of March, 1999 CITY OF DENTON A Texas Mtmmlpal Corporatl~!}/ I/~/I~IC~//tEL~ ]'E-{Z, C~ty Manager ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY Contract For Professional Legal Services - Page 8 TERRY MORGAN & ASSOCIATES ATTEST S \Our Documents\Contracts\99\Teny Morgan W-WW L~t PSA doc Contract For Professional Legal Services - Page 9 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MAN- AGER TO EXECUTE A FIRST AMENDMENT TO THAT CONTRACT FOR PROFES- SIONAL LEGAL SERVICES WITH THE LAW FIRM OF TERRY MORGAN AND ASSO- CIATES ADDING TO THE CURKENT SCOPE OF SERVICES LEGAL ANALYSIS OF THE CITY OF DENTON COMPREHENSIVE PLAN 1999-2020, ANY REQUESTED ASSIS- TANCE IN REWRITING THE DENTON DEVELOPMENT CODE, AND OTHER LEGAL SERVICES RELATED THERETO, INCREASING THE COMPENSATION UNDER THE CONTRACT TO COVER THESE ADDITIONAL SERVICES, AUTHORIZING THE EX- PENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary to add to the current scope of services of that Contract for Professional Legal Services between the City of Denton and Terry Morgan and Associates to prowde professional legal services to the City pertmmng to the legal rexnew of the City of Denton Comprehensive Plan 1999-2020, the Denton Development Code, and related matters and to increase the not-to-exceed limit of compensation under the Contract from $100,000 to $130,000, and WHEREAS, the City Council deems it in the public interest to approve a First Amend- ment to the current Contract for Professional Legal Services with Terry Morgan and Associates adding to the scope of services as lnchcated above, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute a First Amendment to that Contract for Professional Legal Services with Terry Morgan and Associates adding to the scope of sennces legal admce with regard to the rewnte of the City of Denton Comprehensive Plan 1999-2020, the Denton Development Code, and related matters and increasing the compen- sation under the Contract, in substantially the form of the First Amendment attached hereto and incorporated by reference herein SECTION 2 That the City Manager is hereby authorized to make the expenditures and take the actions set forth in the attached First Amendment S~CTION 3 That all previous legal services performed by Terry Morgan and Associates that fall w~thm the contractual scope of legal services as expanded by the First Amendment are hereby ratified and retroactively approved SECTION 4. That this ordinance shall become effective immediately upon its passage and approval JA~/LLER, MAYOR ATTEST, JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTO~¥ Page 2 FIRST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § Tbas First Amendment to that certmn Contract for Professional Legal Services, made and entered Into on the 2nd day of March, 1999, by and between TERRY MORGAN & ASSOCIATES, 1930 Thanksgiving Tower, 1601 Elm Street, Dallas, Texas 75201, hereinafter referred to as '~Consultant", and the CITY OF DENTON, a Texas MUmclpal Corporation, 215 E McK~nney, Denton, Texas 76201, herelnafier referred to as "City", acting by and through its duly-authorized City Manager (hereinafter referred to as the "Base Agreement") WITNESSETH WHEREAS, the City finds it necessary to amend the Base Agreement with Consultant to add professional legal services for assistance m providing legal advice with regard to the Denton Comprehensive Plan 1999-2020 ("Comprehensive Plan"), the Denton Development Code, and related legal services, and WHEREAS, the Consultant is willing to perform such additional services in a professional manner as an independent contractor, and WHEREAS, the City desires to engage the Consultant to render these additional professional servleas in connection therewith, NOW, THEREFORE, ~n consideration of the promises and mutual obligations herein, the parties do hereby mutually agree to amend the scope of services and the compensation of the Base Agreement as follows 1 That Section I "Scope of Services" of the Base Agreement is hereby amended by amending Section 2 b so that same shall now read as follows b Consultant shall provide the City with legal advice and services respecting the rewrite of the Comprehensive Plan, the Development Code, and related matters and services respecting land use issues requested by members of the City staff, as well as any advice requested by the City respecting annexation in connection with utility matters pertoanlng to the htlgatlon between the City and the two Fresh Water Supply District defendants identified in paragraph I A 1 hereinabove 2 That Section II "Term" of the Base Agreement is hereby amended to read as follows Fn:st Amendment to Contract For Professional Legal Services - Page 1 H Term This Agreement shall be for a term of two (2) years, begmmng effective February 1, 1999 and ending on January 31, 2001 Thas Agreement may be sooner terminated m accordance with the prows~ons hereof Tame as of the essence of thas Agreement, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible during the term of thas Agreement, and to meet the schedules estabhshed by the C~ty, through its Caty Council, City Manager or C~ty Attorney, or as the progress of tlus matter may reqmre As htagatmn as contemplated under the terms of this engagement, Consultant and the C~ty reasonably expect that further amendment(s) to thas Agreement will be entered ~nto by them, so long as such contemplated htagataon ~s pendang and not fully rhsposed of 3 That Section III "Compensation and Method of Payment" of the Base Agreement is hereby amended by amending Section C to read as follows C Consultant and the C~ty agree that all charges for the legal servaces hereunder, ~ncludang reasonable out-of-pocket expenses, shall not exceed One Hundred Tharty Thousand Dollars ($130,000 00) The part,es agree that the estabhshment of tlus not-to-exceed figure by the part, es as based upon a reasonable, good froth estimate of the expected legal servmes to be rendered by Consultant, due to posmble unexpected contmgencaes as well as the uncertalntaes of htagat~on and related matters If~t appears during the term ofth~s Agreement that Consultant's fees to properly accomphsh the work provided in the scope of servmes, may exceed $130,000 00, Consultant shall gave notice ~n writing to the Caty Manager and the C~ty Attorney of same Such notacc shall provide an atemazataon of the expected hours and expenses needed to complete the scope of servmes based on each category or task yet to be completed on the engagement The Caty accepts no responsabflaty for any work performed during the term of th~s Agreement an excess of $130,000 unless the C~ty Councd, by resolutaon or ordinance, anthonzes such expendature 4 That save and except as amended hereby, thc terms and condatmns of the Base Agreement entered into by the partaes on the 2nd day of March, 1999 shall remmn in full force and effect IN WITNESS HEREOF, tho Caty of Denton, Texas, has caused th~s Agreement to be executed an four (4) original counterparts, by and through ~ts duly-anthonzed C~ty Manager, and Consultant has executed thas Agreement by and through ~ts duly-authorized undersagned partner, dated tins the day of ,1999 F~rst Amendment to Contract For Professional Legal Services - Page 2 CITY OF DENTON A Texas Mtm~c~pal Corporation ATTEST JENNIFER WALTERS, CITY SECRETARY ~ ~ov~ ^~ ~o ~o~ ~o~ ~/~ v/~/ TERRY MORG~ & ASSOCIATES ATTEST By Fxrst Amendment to Contract For Professxonal Legal Services - Page 3