2013-056s:llegallour documentslordinances113Ucelsey engagement ordinance.doc
ORDINANCE NO. 2013-056
AN ORI)INANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE
CITY MANAGER TO EXECUTE AN ENGAGEMENT ARRANGEMENT WITH KELSEY,
KELSEY & HICKEY FOR LEGAL SERVICES R�GARDING PROPERTY ACQUISITIONS
AND CLAIMS MATTERS RELATED TO ELECTRIC TRANSMISSION L1NE AND
ELECTRIC SUBSTATION PURPOSES OF DENTON MUNICIPAL ELECTRIC;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council deems that it is in the public interest to engage Kelsey,
Kelsey & Hicicey (the "Firm"), to provide legal services pertaining to the property acquisitions
related to the Denton Municipal Electric future electric transmission line projects and future
electric substation projects to be situated within the City's duly-certificated service territory and
the matter styled Roth, et al. v. City of Denton, Texas, Cause No. 2012-60839-393 pending in the
393`d District Court of Denton County; and
WHEREAS, the approved City Capital Improvement Plan for 2013-2017 provides for the
construction of twelve (12) substations and seven (7) transmission line projects that call for the
acquisition of real property interests; and said projects provide for the future electric reliability of
the City; and
WHEREAS, the Firm is highly competent in the area of real property transactions,
including, without limitation, eminent domain activities and is highly qualified to perform the
services prescribed in the engagement arrangeme�it; and
WHEREAS, these services are necessary, and that due to their volume, should be
performed by an outside law firm; and City Staff has selected this outside law firm because of its
high reputation in the legal profession in the areas of real property law. The City Council has
further determined that the firm is highly competent and the fees under the engagement
arrangement are fair and reasonable, and are consistent with other attorneys' fees for such
services; and
WHEREAS, the City staff has reported to the City Council that there is a substantial need
for the above-referenced professional services in order to support the activity of Denton
Municipal Electric, the City's electric department, and that limited City staff cannot timely
perform the services and tasks with respect to the above stated services with its own personnel;
NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. �'he preamble and recitations to this ordinance are hereby adopted as
express findings of the City Council and are incorporated herein for all purposes.
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s:Uegallour documentslordinances113Ucelsey engagement ordinance.doc
SECTION 2. The City Manager is hereby authorized to execute the engagement
arrangement by and between the City and Kelsey, Kelsey & Hickey (the "Agreement") for
professional services, as stated in said Agreement; such Agreement in the form of the Agreement
attached hereto as Exhibit "A", incorporated herein by reference.
SECTION 3. The award of this Agreement by the City is on the basis of the
demonstrated campetence, knowledge, and qualifications of the Firm and the demonstrated
ability of the Firm to timely perform the services needed by the City for fair and reasonable fees.
SECTION 4. The expenditure of funds as provided in the attached Agreement is hereby
authorized.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the /� �'d day of A , 2013.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPR ED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
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KELSEY, KELSEY & HICKEY
ATTORNEYS & COUNSELORS
RICHARD H. KELSEY
Board Certified, TEXAS BOARD OF LEGAL SPECIALIZATION
Commercial, Residential, and Farm and Ranch Real Estate Law
Estate Planning and Probate Law
JOHN E. KELSEY
Certified Ad Litem, STATE BAR OF TEXAS
Probate Matters
SCOTT W. HICKEY
Board Certified, TEXAS BOARD OF LEGAL SPECIALIZATION
Oil. Gas and Mineral Law
February 6, 2013
Ms. Anita Burgess
City Attorney, City of Denton
215 E. McKinney
Denton, TX 76201
RECEIVED FEB 06 2013
Re: City of Denton — Denton Municipal Electric Expansion Project
Dear Ms. Burgess:
Thank you for the opportunity to discuss the above project with you and Richard Casner.
We are excited about the opportunity to work with you and the City of Denton/DME on this
proj ect.
We understand the scope of the project to be very extensive, covering perhaps five to
seven years from beginning to end. The general concept of our role in the project is to be directly
involved in the acquisition of property rights necessary to support the project. The legal services
we foresee at this time are as follows:
A. Identify and understand the scope of the project and how all the pieces of the
project fit together. This will entail extensive discussions with DME, surveyors,
appraisers, title companies, right-of-way agents, communication with landowners,
continuous communication and coordination with city staff and DME, preparation
of appropriate documents, negotiation with landowners, lien holders, other
utilities, mineral owner's, and all those who might be affected by the activity,
arrange for disbursement of funds necessary to pay landowners, right-of-way
persons, surveyors, appraisers, and title companies, periodic reports on status of
Mailing: P.O. Box 918, Denton, Texas 76202-0918
Physical: 2225 E. McKinney St., Denton, Texas 76209
(940) 387-9551 Metro (940) 243-2888
Facsimile (940) 387-9553
www.dentontexaslawyers.com
Ms. Anita Burgess
Februaiy 6, 2013
Pa�e 2
work and the inevitable unknown issues that will arise, continuous review of all
documents necessary and appropriate for the project and each individual tract of
land and landowner, ensure compliance with all state law and applicable laws, and
unforeseen events.
B. Set up a system whereby each phase, tract of land, and construction plans are a11
coordinated to move as expeditiously as possible.
C. Develop and implement a philosophy and approach to negotiations with
landowners so as to minimize adverse feelings in the community.
D. Prepare, keep and maintain all records that may be necessary or appropriate as
permanent records of the City regarding this project. Those records will be turned
over to the City per the records retention policy of the City.
E. Prepare, file and prosecute eminent domain proceedings through all phases of
each case,
Personnel available for this project are as follows. All three of our attorneys will be
available for the project. Curriculum Vitae of each of the attorneys are attached. This firm has
over forty years of experience in land acquisition and eminent domain proceedings. The firm
does not do law practice in divorces, personal injury, or criminal work. Our area of practice is in
property and property related issues including contracts, municipal planning and development,
probate, real estate, oil and gas, business entities and business transactions. The firm also does
extensive litigation work in our area of practice. Though the attorneys will be in charge of all
phases of the project, we plan to hire a full time employee who will be the project manager
within our office. This person will have responsibility to work closely with the attorneys to
coordinate all matters and develop and implement a workflow chart so that we will know where
each tract of land and each element of the project is at any particular time. We have identified an
employee whom we think is very suitable for the project. We anticipate that she will continue to
stay with us for an extended period of time. She would also be the person who is always
available for immediate contact and coordination for all information brought in or sent out. It is
possible that we may retain the services of additional attorneys and employees depending on the
total demand for services. We assure the City that we will keep and maintain adequate personnel
to do the job efficiently and effectively.
We need to work directly with DME on engineering, surveying, and similar issues. DME
will prepare for us a list or a suminary of all the things that need to be accomplished for the
project to be worked on and completed. We must have accurate survey data and route maps. We
have worked with Paul Williamson and the real estate division in the past and will continue to do
so as appropriate or necessary for the project. We have worked well and efficiently with City
departments and will continue to do so. It will be appropriate for each of the City departments or
divisions and DME to designate a point person for this project so that the incoming and outgoing
information does not get fractionated among different persons. We ask the City to tell us which
Ms. Anita Burgess
February 6, 2013
Page 3
departments they want involved in which area of the project and to designate the appropriate
point person,
We propose the following in regard to payment of fees and expenses:
A. The current rate for attorneys is as follows: 1.) Richard Kelsey -$325.00 per
hour; 2.) Scott Hickey -$300.00 per hour; 3.) John Kelsey -$275.00 per hour. If
we involve other attorneys in the project, we will only do so after approval by the
City Attorney's office. No fee for any additional attorney brought onto the project
will exceed $300.00 per hour. Each attorney will keep accurate, detailed billing
records and will submit billing on a monthly basis to the City Attorney's office.
The work of each attorney will be identified and billed accordingly. Paralegals
will be billed at $75,00 per hour. The work the project person does for the project
will be billed out at legal assistant rates. Fees are charged in 1/10 of an hour (six
minute) increments. The billing will be by the hour and fully documented. We
anticipate that all bills will be paid thirty (30) days after billing.
B. We have been told by the City attorney's office that they would prefer that we
handle the entire project to include all parts and functions. We visualize these
functions as follows:
1. Surveyors;
2. Appraisers;
3. Right-of-way negotiators;
4. Title companies;
S. Other functions as necessary.
Our concept is that we would deal with all these subparts with the persons selected
and approved by the City. We will be available to review their proposed rate
structure and fees and charges. All expenses of third party billing will be invoiced
directly to and paid by the City.
C. All expenses will be itemized. Any major expense will be incurred only after
approval by the City Attorney's staf£ Each service provider will have a separate
contract which describes the scope of work and the billing procedures and
documents. Those contracts will be approved by the City.
We anticipate furnishing verbal and written status reports as may be necessary or
appropriate. We will be available for appearance before the City Council or any subcommittee as
well as the department heads.
Ms. Anita Burgess
February 6, 2013
Page 4
No one can think of all matters that might arise. There are always unanticipated events.
There are always judgment factors involved. We understand that we cannot and will not make
any agreements on behalf of the City which have not been expressly approved by the City
Attorney's office or the City Council. We will not hold ourselves out as agents of the City
except in our capacity as attorneys. We will not enter into any agreements that have not been
previously approved by the City Attorney or the City Council.
In addition to the work on the project set forth above, it is our understanding that the City
is asking us to be involved in the litigation for that certain case currently pending under Cause
No. 2012-60839-393, Roth et al v. City of Denton, Texas, in the 393rd District Court of Denton
County, Texas. We are able to serve as co-counsel or substitute into the suit as the new lead
counsel. The same hourly rates would apply for the work performed on this case on behalf of the
City.
CONCLUSION
It has been our experience over many years in handling rnany types of projects like this
one that, if you communicate with persons in an open and fair manner and explain the necessity
for their cooperation, most persons are relatively easy to work with for a fair resolution. Of
course, there will always be the few persons with whom cooperation is impossible. They must be
dealt with within the court framework. We understand that we work at the pleasure of the City
Council and that our arrangement can be revisited as necessary or appropriate by the City or by
us as may be appropriate. We intend to take the long term view of this relationship so that the
entire project can be handled consistently and effectively through our services and staff.
Thank you very much for the opportunity to be of service to the City. We look forward to
finalizing these arrangements to a mutual satisfaction.
Please advise if you have any questions.
Very truly your.
�
Richard H. Kelsey
RHK/amj
Enclosures; as noted
�
GEORGE C. CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPRO ED AS TO LEGAL FORM:
A1vITA BURGESS, CITY ATTORNEY
BY: �
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