2009-170i .a sAour documents\ordinances\09\burford & ryburn extended engagment.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE CITY MANAGER TO EXECUTE A SUPPLEMENTAL
ENGAGEMENT LETTER AGREEMENT WITH BURFORD & RYBURN, LLP FOR
PROFESSIONAL LEGAL SERVICES RELATING TO THE EMINENT DOMAIN
ASSIGNMENTS FOR WEST 380 (UNIVERSITY DRIVE) PROJECT; 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 engage Burford & Ryburn, LLP to provide professional legal services relating to necessary
domain matters for the right of way for the West 380 Project; and
WHEREAS, on June 25, 2009, the City Manager approved the original Engagement
Letter Agreement to provide professional legal services relating to necessary domain matters 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 law 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 Supplemental Engagement Letter dated July 8, 2009; 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 City Manager is hereby authorized to execute a Supplemental.
Engagement Letter dated July 8, 2009 with Burford & Ryburn, LLP for professional legal
services relating to necessary domain matters for the right of way for the West 380 Project
attached hereto and incorporated herein by reference.
SECTION 3. The award of this Supplemental Engagement Letter is on the basis of the
demonstrated competence and qualifications of Burford & Ryburn, LLP and the ability of
Burford & Ryburn, LLP to perforni the professional legal services needed by the City for a fair
and reasonable price.
sAour documents\ordinances\09\burford & rybUM sup eng ltr ord.doc
SECTION 4. The expenditure of funds as provided in the attached Supplemental
Engagement Letter 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 , 2009.
G/
MARK A._B UGHS, MAYOR
f
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: Q
U- -
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
'01or 'op,
2
BuRFoRD & RyBuRm L.L.P.
Attorneys and Counselors at Law
SCOTT T. DOGGETT
DALLAS • FORT WORTH
WRITER'S DIRECT DIAL:
(214) 740-3138
WRITER'S FACSIMILE:
(214) 740-2817
WRITER'S EMAIL ADDRESS:
sdoggettnabdaw.com
WEB SITE:
www.bdaw.com July 8, 2009
Anita Burgess
City Attorney
City of Denton
215 East McKinney Street
Denton, Texas 76201
RECEIVED
JUL 4 9 2009
CITY OF DENTON
LEGAL DEPT.
Re: Proposal for Supplemental Engagement on Eminent Domain Assignments for
West 380 (University Drive) Project representing the City of Denton, Texas.
Dear Ms. Burgess:
My firm has enjoyed the current engagement on behalf of the City of Denton representing
it in the necessary eminent domain matters for the right of way for the West 380 Project. Ms.
Pamela England requested that I send to you this proposal to extend our existing engagement to
wind up the acquisitions of the outstanding parcels needed for the Utility project. Our best
estimate of expenses and fees for the average condemnation case, as set forth on page 7 of my
original engagement proposal dated June 25, 2008 (page 5 herein) remains good for the current
anticipated services to be provided. The attorney's fees for each case anticipated through the
completion of special commissioners' administrative hearings will most likely range from $2,500
to $3,000 per parcel or file, absent new information such as previously unknown leasehold
interests, title issues or multiple owner interests that require our additional involvement to secure
lawful possession of the tracts on behalf of the City.
Based upon our review of the information with the City's engineering and right of way
staff, it appears that we have gained lawful possession of 4 out of original 17 parcels identified.
There remain approximately 7 parcels that are potentially heading to condemnation even though
negotiations continue. We anticipate maybe two properties will appeal the condemnations and
seek relief in trial court. I commend your staff and the right of way agents for acquiring a
majority of the needed easements by negotiations, outside of our assistance.
This letter shall supplement my prior engagement letter dated June 25, 2008. Portions of
the prior engagement letter are included herein for your consideration. Although no current
dispute exists to our knowledge, we represent many gas utilities in their easement and right of
way acquisition in and around Denton County. In the event that such a conflict or dispute arose
between the City and one of these clients, we would immediately notify the City of the conflict
and may have to decline representation against these current clients, or possibly withdraw from
3100 LINCOLN PLAZA • 300 N. AKARD • DALLAS, TEIZAS 75201-6697 • (214) 740-3100
Est. 1907
613309.1 081-0000
July 8, 2009
Page 2
representing the City if the circumstances warranted. As there is a potential for the conflict when
dealing with competing interests for permits and road crossings within the City's jurisdictional
boundaries, we want to fully disclose that fact, however remote the conflict might be.
This letter sets forth our proposal for our professional legal services and an estimate of
charges for the engagement. Please read this letter carefully. It describes the terms and
conditions under which we will undertake to represent the City of Denton, Texas in the legal
work for condemnation of the parcels needed for the US 380 project. The scope of our
employment does not include any criminal proceedings, tax matters, or bankruptcy proceedings.
The terms and conditions of our engagement are as follows:
1. Our fees for legal services are based upon the hourly rates in effect on this
matter for each lawyer and legal assistant in our firm at the time the
services are rendered. Our initial hourly rates are stated on page 7 of this
letter. We periodically review these hourly rates and adjust them if
appropriate. We will notify you in advance of any changes in these rates.
Scott T. Doggett will be the attorney responsible for the legal services,
with the assistance of Preston Dobbs, R. Scott Moran, D. Wade Emmert,
and other qualified attorneys and staff of the firm.
2. We bill clients monthly for fees and expenses, such as telephone long-
distance charges, copying, postage, travel, computer-assisted research
charges, facsimile transmission, etc. Each lawyer and legal assistant
contemporaneously records the time required to perform services, and
these time records are put into a computer that generates a monthly bill
that we try to send out around the 15th of the following month. This
monthly bill describes services performed and expenses incurred.
3. Our hourly rates do not include any interest factor for slow payment.
Because of this and the additional fact that we do not include a service
charge for late payments, we must insist that our clients pay their bills
promptly. It is our usual practice to send to our clients for direct payment
by them invoices we receive from third parties such as court reporters,
process servers, expert witnesses, and reproduction services. You will be
expected to pay such invoices promptly upon receipt. If outside experts or
consultants are required for the matters, we will obtain you approval prior
to engaging those persons.
4. If during our representation we anticipate a significant increase in the level
of our activity on your behalf, e.g., the commencement of trial preparation
or trial, we may bill you on a basis more frequently than monthly. We
will expect such statements to be paid promptly also.
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July 8, 2009
Page 3
5. We usually require an advance of fees before we commence work for a
client. However, we will waive those for the City other than filing fee
deposits for cases as they are delivered to us, as referenced below.
6. By your execution of this engagement letter, you agree that we are
relieved from the responsibility of performing any further work should
you fail to pay any monthly statement for fees and expenses (including
bills for expenses received from third parties), within fifteen (15) days of
receipt of such statements or requests, normally by the first day of the
month following receipt. In any of such events, you agree that we may
move to withdraw as counsel in any case in which we have made an
appearance on your behalf and that you will promptly execute any
withdrawal motions required to accomplish this.
7. By your signature on this engagement letter, you show that you also
understand that under Texas law we have a right to assert a lien against a
client's files to secure payment of any unpaid amounts they owe us.
8. During our discussion with you and your agents about handling these
matters, we may provide you with certain estimates of the magnitude of
the fees and expenses that will be required at certain stages. Please
understand that such estimates are just that and that fees and expenses are
ultimately a function of many conditions over which we have little or no
control, particularly the extent to which the opposition files pretrial
motions and engages in its own discovery. The reason we submit our
clients bills monthly shortly after the services are rendered is so they will
have a ready means of monitoring and controlling the expenses they are
incurring. If you believe that the expenses are mounting too rapidly,
please contact us immediately so that we can help in evaluating how they
might be curtailed in the future. When we do not hear from you, we
assume that you approve of the general level of activity on our part in this
matter.
9. As we may have discussed with you, we represent TXU Electric Delivery
Company, CrossTex Pipeline, Energy Transfer, Chief Oil and Gas (Eagle
Mountain Pipeline), Atmos Energy, Antero Resources, Devon (Acacia and
Southwestern Gas Pipeline, Inc.), Empire Pipeline Corporation,
Momentum /MEG, Chesapeake/ Texas Midstream, Lonestar Midstream,
Enterprise and DCP Midstream in eminent domain proceedings. While
no conflict of interest exists presently, in the event such a conflict arises,
we will notify you immediately so that any such conflict can be resolved.
Potentially, we might have to withdraw from our representation of the City
of Denton if any such conflict cannot be resolved.
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July 8, 2009
Page 4
10. We shall maintain and shall be caused to be in force at all times during the
term of this Contract, a legally binding policy of professional liability
insurance, issued by an insurance carrier approved to do business in the
State of Texas by the State Insurance Commission, which carrier must be
rated by Best Rated Carriers, with a rating of "A-" or higher. Such
coverage shall cover any claim hereunder occasioned by our negligent
professional act and/or error or omission, in an amount not less than
$500,000 combined single limit coverage occurrence. In the event of
change or cancellation of the policy by the insurer, we hereby covenant to
immediately advise City thereof; and in such event, we shall, prior to the
effective date of change or cancellation, serve a substitute policy
furnishing the same coverage to City. We shall provide a copy of such
declarations page of the existing policy to City through its City Attorney,
simultaneously with the execution of this Contract. Upon request by City,
further information regarding our liability insurance limits and coverage
may be provided.
You also need to be aware of the following, which we are required to disclose to you
under the Texas Lawyer's Creed:
1. We are bound to follow the Texas Lawyer's Creed, as set forth in this
letter.
2. Civility and courtesy to the opposition and their counsel are expected and
are not a sign of weakness.
3. From time to time, we may advise you to follow expected norms of proper
behavior in various settings.
4. We will not pursue conduct that is intended primarily to harass or drain
the financial resources of the opposing party.
5. We will not pursue tactics that are intended primarily for delay.
6. We will not pursue any course of action that is without merit.
7. We reserve the right to decide whether to grant accommodations to
opposing counsel in all matters that do not adversely affect your lawful
objectives. You have no right to instruct me'to refuse reasonable requests
made by other counsel.
8. You should be aware that there are measures other than litigation, such as
mediation or arbitration, for settling disputes. In some cases, these
alternate methods of resolving disputes may resolve the dispute faster and
613309.1 08 l -0000
July 8, 2009
Page 5
with less expense than litigation. If you wish to discuss some of these
methods in more detail, please let us know.
We discuss the terms and conditions of our engagement so candidly because we believe
that our clients are entitled to know how these matters will be handled and to avoid any
misunderstandings. Please sign a copy of this letter in the space provided below, showing your
agreement to the terms and conditions set forth above. Upon your signature of this letter, we will
commence our representation of you in the above-described matters.
For the scope of work anticipated for this project, please see the Checklist for General
Condemnation Files attached to the original June 25, 2008 engagement. We will not be
responsible for title work on the tracts to be acquired, but will review a title run sheet and
commitment schedules you shall provide us to determine what parties are necessary for joinder
in the actions, to ensure that you are acquiring good, defeasible title. We propose that you pay
$500 along with each parcel file forwarded to us for condemnation to offset the initial workup
and filing fees to be incurred. The $500 will be applied towards the initial expense and charges to
file an original petition and record a Notice of Lis Pendens. We have previously received and
modified a suitable form of a condemnation petition utilized by the City in former
condemnations and have adapted it to suit the needs for the West 380 Utility Project.
With this supplemental engagement, we will resume responsibility for all administrative
and legal representation through the commissioners' hearings, and if appealed, will represent the
City in the jury trial of the cases, including handling discovery, coordinating expert witnesses
and preparing all items needed for presentation at trial.
From our recent experience, we estimate that the legal fees through the special
commissioners' hearings to run approximately $2,500 to $3,000 each. In the case of an appeal
from a commissioners' award, the legal fees may range from $20,000 to $50,000, depending
upon the complexity of the issues presented, such as defending the city's right to take and
developing the compensation evidence unique to the individual parcel, and, considering the
amount of opposition posed by the owners. The expert witness fees for an appraisal and
testimony through special commissioners hearing may range from $3,000 to $5,500 per case,
generally. The expenses for some of the appraisal experts, for deposition and trial testimony,
including exhibit preparation, might run from $7,000 to $15,000, depending upon the complexity
of the specific valuation or damage evidence in question.
My best estimate of attorney's fees to be incurred in order to gain lawful possession of
the remaining 7 parcels is approximately $18,000 to $25,000. This estimate does not include the
fees for the anticipated litigation with any of the owners who might appeal the administrative
awards and proceed to trial. We are awaiting appraisal reports on several parcels to submit along
with final offers to the owners and anticipate that all administrative proceedings can be
concluded by the end of August.
I will review any additional information or instructions from your office regarding the
procedures and protocol as an outside counsel. The foregoing is our proposal to extend our
613309.1 081-0000
July 8, 2009
Page 6
engagement for professional legal services to be rendered for the City of Denton. I will be happy
to discuss those terms and conditions with you, City Manager or anyone else, so that we can
continue with our engagement and finalize the necessary legal work in the most efficient manner.
I welcome your inquiry about the status of the project or details of specific cases; please feel free
to call me to discuss any of these matters at your convenience.
Very truly yours,
BURFORD & RYBURN, L.L.P.
Scott T. Doggett
Agreed:
CITY OF DENTON
(Name, Title) Al L
eo h e uampbetii
City Manager
Date: l7c~` loq
A . ,
std
AT %NFER JWALTERS, C T SECRETARY
B JMn -l 6 , ) 0 X+01n ~
APPROVED AS LO LEGAL FORM:
ANITA BURGESS. CITY ATTORNEY
BY:
117V r
613309.1 081-0000
July 8, 2009
Page 7
Burford & Ryburn
Fee Schedule for City of Denton Condemnations
Attorneys
Scott T. Doggett
R. Scott Moran
D. Wade Emmert
David M. Weaver
Jeb Loveless
Edwin L. Meador
Larry Hallman
Joann N. Wilkins
Preston Dobbs
Lance C. Travis
Andy Cox
John Baker
Michael Ma
Heather Johnson
New Associates
Paralegals and Legal Assistants
Proposed
Rate
$ 295.00
$ 295.00
$ 295.00
$ 295.00
$ 295.00
$ 285.00
$ 285.00
$ 285.00
$ 255.00
$ 255.00
$ 225.00
$ 225.00
$ 200.00
$ 200.00
$ 200.00
$ 125.00
613309.1 081-0000
July 8, 2009
Page 8
THE TEXAS LAWYER'S CREED-A MANDATE FOR PROFESSIONALISM
I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal
system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas
Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than
merely avoiding the violation of laws and rules. I am committed to this creed for no other reason
than it is right.
1. OUR LEGAL SYSTEM
A lawyer owes to the administration of justice personal dignity, integrity, and
independence. A lawyer should always adhere to the highest principles of professionalism.
1. I am passionately proud of my profession. Therefore, "My word is my bond."
2. I am responsible to assure that all persons have access to competent representation
regardless of wealth or position in life.
3. I commit myself to an adequate and effective pro bono program.
4. I am obligated to educate my clients, the public, and other lawyers regarding the
spirit and letter of this Creed.
5. I will always be conscious of my duty to the judicial system.
II. LAWYER TO CLIENT
A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ
all appropriate means to protect and advance the client's legitimate rights, claims, and objectives.
A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public
unpopularity, nor be influenced by mere self interest.
1. I will advise my client of the contents of this creed when undertaking
representation.
2. I will endeavor to achieve my client's lawful objectives in legal transactions and
in litigation as quickly and economically as possible.
3. I will be loyal and committed to my client's lawful objectives, but I will not
permit that loyalty and commitment to interfere with my duty to provide objective
and independent advice.
4. I will advise my client that civility and courtesy are expected and are not a sign of
weakness.
613309.1 081-0000
July 8, 2009
Page 9
5. I will advise my client of proper and expected behavior.
6. I will treat adverse parties and witnesses with fairness and due consideration. A
client has no right to demand that I abuse anyone or indulge in any offensive
conduct.
7. I will advise my client that we will not pursue conduct which is intended
primarily to harass or drain the financial resources of the opposing party.
8. I will advise my client that we will not pursue tactics which are intended primarily
for delay.
9. I will advise my client that we will not pursue any course of action which is
without merit.
10. I will advise my client that I reserve the right to determine whether to grant
accommodations to opposing counsel in all matters that do not adversely affect
my client's lawful objectives. A client has no right to instruct me to refuse
reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and
other alternative methods of resolving and settling disputes.
III. LAWYER TO LAWYER
A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of
litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and
mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct,
attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional
conduct in retaliation against other unprofessional conduct.
1. I will be courteous, civil, and prompt in oral and written communications.
2. I will not quarrel over matters of form or style, but I will concentrate on matters
of substance.
3. I will identify for other counsel or parties all changes I have made in documents
submitted for review.
4. I will attempt to prepare documents which correctly reflect the agreement of the
parties. I will not include provisions which have not been agreed upon or omit
provisions which are necessary to reflect the agreement of the parties.
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July 8, 2009
Page 10
5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as
soon as practicable, when hearings, depositions, meetings, conferences or closings
are cancelled.
6. I will agree to reasonable requests for extensions of time and for waiver of
procedural formalities, provided legitimate objectives of my client will not be
adversely affected.
7. I will not serve motions or pleadings in any manner that unfairly limits another
party's opportunity to respond.
8. I will attempt to resolve by agreement my objections to matters contained in
pleadings and discovery requests and responses.
9. I can disagree without being disagreeable. I recognize that effective
representation does not require antagonistic or obnoxious behavior. I will neither
encourage nor knowingly permit my client or anyone under my control to do
anything which would be unethical or improper if done by me.
10. I will not, without good cause, attribute bad motives or unethical conduct to
opposing counsel nor bring the profession into disrepute by unfounded
accusations of impropriety. I will avoid disparaging personal remarks or
acrimony towards opposing counsel, parties and witnesses. I will not be
influenced by any ill feeling between clients. I will abstain from any allusion to
personal peculiarities or idiosyncrasies of opposing counsel.
11. I will not take advantage, by causing any default or dismissal to be rendered,
when I know the identity of an opposing counsel, without first inquiring about
that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing
counsel before or contemporaneously with submission to the Court. I will
promptly approve the form of orders which accurately reflect the substance of the
rulings of the Court.
13. I will not attempt to gain an unfair advantage by sending the Court or its staff
correspondence or copies of correspondence.
14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a
good faith effort has been made to schedule it by agreement.
15. I will readily stipulate to undisputed facts in order to avoid needless costs or
inconvenience for any party.
16. I will refrain from excessive and abusive discovery.
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July 8, 2009
Page II
17. I will comply with all reasonable discovery requests. I will not resist discovery
requests which are not objectionable. I will not make objections nor give
instructions to a witness for the purpose of delaying or obstructing the discovery
process. I will encourage witnesses to respond to all deposition questions which
are reasonably understandable. I will neither encourage nor permit my witness to
quibble about words where their meaning is reasonably clear.
18. I will not seek Court intervention to obtain discovery which is clearly improper
and not discoverable.
19. I will not seek sanctions or disqualification unless it is necessary for protection of
my client's lawful objectives or is fully justified by the circumstances.
IV. LAWYER AND JUDGE
Lawyers and judges owe each other respect, diligence, candor, punctuality, and
protection against unjust and improper criticism and attack. Lawyers and judges are equally
responsible to protect the dignity and independence of the Court and the profession.
1. I will always recognize that the position of judge is the symbol of both the judicial
system and administration of justice. I will refrain from conduct that degrades
this symbol.
2. I will conduct myself in Court in a professional manner and demonstrate my
respect for the Court and the law.
3. I will treat counsel, opposing parties, the Court, and members of the Court staff
with courtesy and civility.
4. I will be punctual.
5. I will not engage in any conduct which offends the dignity and decorum of
proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or
authorities to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and
consideration.
9. I will be considerate of the time constraints and pressures imposed upon the
Court, Court staff and counsel in efforts to administer justice and resolve disputes.
613309.1 081-0000