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Home My WebLink About2010-084sAour doe umen t \ordinance lIOlburford & ryburn extended c rig a m nt.do ORDINANCE NO. 2010-084 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SUPPLEMENTAL ENGAGEMENT LETTER AGREEMENT WITH BURF RD & RYBURI , LLP FOR PROFESSIONAL LEGAL SERVICES RELATING To THE EMINENT DOMAIN ASSIGNMENTS FOR WEST 380 (UNIVERSITY DRIVE) PROJECT; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING All EFFECTIVE DATE. WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to engage Burford & Rybum, LLP to provide professional legal services relating to necessary domain matters for the right ofway for the West 380 Project; and WHEREAS, on June 25, 2008, the City Manager approved the original Engagement Letter Agreement to provide professional legal services relating to necessary domain natters for the right of way for the west 380 Project; 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 Burford Ryburn, LLP is appropriately qualified under the provisions of the lair to be retained a 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 Supplemental Engagement t fetter dated February 10, 2010; NOW, THEREFORE, THE COUNCIL. OF THE CITY OF DE ITON HEREBYORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this Ordinance. SECTION 2. The City Manager is hereby authorized to execute a Supplemental Engagement Letter dated February 10, 2010 with Burford & Ryburn, LLP for professional legal services relating to necessa ► domain matters for the right of way for the West 380 Project attached hereto and incorporated herein by reference. SECTION 3. The ward of this Supplemental Engagement Letter is on the basis of the demonstrated competence and qualifications of Burford & Ry um, LLP and the ability of Burford & Ryburn, LLP to perform the professional legal services needed by the City for a fair and reasonable price. Oour docum e ntslordinaneeA1O1burford & r burn extended e n gagrn e n t. do SECTION 4. The expenditure of funds as provided in the attached Supplemental Engagement Fetter is hereby authorized, and the previous expenditures regarding this Project are ratified and approved. SECTION 5. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2010. ATTEST: ST: JENNIFER WAITERS, CITY SECRETARY RIF APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 0 1 FAA LOW 9004M11 MIIVFr 2 BuRFoRD & RYBURN, L.L.P. Attonleys and Counselors at Law IAS * 1--'ORT WO TH 4YMI-J 'S DIRECTOTAL; 4214) 740-3139 WR "ER'S >=A1`SINIILV7: (21-1) 71CY-2817 WFLr1'ER_S EMAIL ADDRESS - WEB SrTr. February 1, 2010 Anita Burgess City Attomey 215 East McKinney Street Denton, Texas 76201 PRIVILEGED AND CONFIDENTIAL ATTORNEY 7 CLIENT COMMUNICATION Re: Supplement Budget Projections for Outside Legal services; o Utility Project Dear Ms. Burgess: f write at the request of Painela England to provide my best estimate of the remaining work needed and a projection of attorney's fees and expenses that may be required to close the outstanding natters on the 380 Utility Project that our firm was engaged to do. The three remaining natters include the following properties: Kern 2026 W. University), , Elm Bolivar, and Dobson Property Whata urger . l will give brief capsule ort each below. Kern W. University) - This involves the condemnation to acquire a '-wide public utflity easement and a additional ternporary eonstrLletion and access easenient across the fiiont of the improved property. Condemnation papers were filed, negotiations stalled, and a Bearing was conducted on August It 2009 where the special commissioners awarded the owners $95,963.00 in total compensation. The C ity's expert testimony reflected a total compensation of } f ,00. Landowners filed their objections to the award. The entire case has now been appealed for de no fo trial in the Denton Probate Court, Discovery has be rn propounded upon the Defendants, but no responses have been provided, but anticipate those being served February 1, 2010. At -issue is the City's right and exercise of eminent domain and the compensation for the taking. Based upon my assessment, I anticipate these owners to fight on every issue. Due to the nature of the case, I estimate that the City could expend another $30,000 to $50,000 in attome ' fees to c oncltide this inatter to finaI j ud ent. Expert fees and costs may run from $15,0 0 o to $30,000 through trial on this matter, assuming we maintain the current appraisal witness and possibly retain a development or land planning expert. We may be able to use the City's in-house 663851A O !- 600 Pamela 0. England February 1, 2010 Page 2 engineers ror much of the work. We plan to prepare and file a Motion for Partial Summary Judgment to prove up the ity's right to take. With that ruling, the burden of procceding and burden of proof shifts upon the landowners on the sole issue e mpensati n, Elm/ Bolivar Ltd.- 'rhis case was a condemnation where we presented evidence at special commissioners hearing, received a less than favorable award, and elected to nonsuit our condemnation. The City Engineer was able to negotiate with TxDOT for therm to accommodate our utility within the TxDOT right of w . The only thing pending ding is the Landowners' claim for a hearing to recovcr reasonable and necessary attorneys fees and witness fees and expenses as provided by §2 1.019 Tex. Property Code. Those fees have not been disclosed by Michelle Jones, but I anticipate that they will claim some derivative from their contingent fee contract. The Special Commissioners' awarded $2 o,o o in con pen ation for the taking. Our evidence vas $130,820. So, the attorneys might claim from $ 0,000 to $ o,000, solely rased upon a contingent recovery. However, considering (he tine spent and effort exhibited at the hearing, I believe the judge would award fees in excess of $5,000, but maybe less than $30,000 as the only expert utilized was the owner himself: We will be seeking limited discover re Uiring Michelle Jones to disclose her fees sought by the hearing. 1 anticipate our fees and expenses to conclude this natter to be $1, 00 to $ ,o o, depending ixpon h ow rnuch of a fight the opposition pro vi des in withhoIding the inform ati n. Dobson Prop rtics L.L ' what bur This is a case where the City filed its condemnation, obtained an award based solely upon ity's evidence, then elected to n nsult the condemnation to avoid exposure or risk at trial. The City staff determined that the temporary construction casement could be eliminated, and special Provisions with the contractor could be nude to conduct all activity within the Cityls existing utility easement. We have negotiated a tentative settlement whereby the City will acquire a temporary construction easement for 1 year, with limitations, while the owner will remove two electric light poles and an encygi cd sign -from the easement area. 'Total compensation being considered is $34,254 based upon current discussions. If accepted, we NN"ill not owe any owner's attomey's fees or costs f'rorn the dismissal. If'rejected, we could be exposed to pay attorney's fees and costs approximated at $7,500, and honor a side agreement for relocation of the sign, the costs of which were previously agreed to al $2 ,000. If not settled we could be Facing an inverse Condemnation or trespass claim if the contractors deviate o ff o F the existing easement. I es innate that our total fees to conclude this negotiated settlement to be around $2, 00. In summary, the estimated costs and expenses For closure of the above uses are reasonable based Upon our e cperiencc4ith the opposing attorneys, the complexity of the cases 8851.1 1-a000 Pala G. England FebMary 1, 2010 Page pending and facts as they exist today; Should new information arise or the pleadings inaterially Iles• the coLlrsO Of thC Ca S CS3 I wi11 advise you promptly so that we can make necessary adjustments to the scope of otu work. Very truly yours, U FD D & 1 YBURN, L.L.P. Scott T. Doggett e : Pamela G. England CITY OF DENTO George . Campbell, City Manager ATTEST JENNIFER WAITERS, CITY SECRETARY APPROVED AS TO DECAL FORM ANITA BURGESS, CITY ATTORNEY BY: t 6 r8 1.1 081-0000