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HomeMy WebLinkAbout11511RESOLUTION NO. 11511 A RESOLUTION APPROVING THE ENGAGEMENT OF DIETZE AND DAVIS, P.C. AS SPECIAL COUNSEL TO INTERVENE IN BLACK HILLS ELECTRIC RESOURCE PLAN PROCEEDINGS BEFORE THE COLORADO PUBLIC UTILITIES COMMISSION (DOCKET 08A -346E) AND AUTHORIZING PAYMENT OF SPECIAL COUNSEL COMPENSATION FROM THE CITY COUNCIL'S PROFESSIONAL SERVICES ACCOUNT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Pursuant to Section 6 -7 of the Charter of the City, the City Attorney's engagement of Dietze and Davis, P,C., as special counsel to intervene in Black Hills Electric Resource Plan proceedings before the Colorado Public Utilities Commission (Docket 08A -346E) is hereby approved. CFrTI(lnl ') The compensation and costs of special counsel are authorized to be paid out of City Council's Professional Services Account upon approval thereof by the City Attorney. CFrTI(lnl 'z This Resolution shall become effective upon final approval and adoption. E INTRODUCED: January 12, 2009 BY: Randy Thurston Councilperson APPROVED:'— PRESIDENTof City Council D O ED A e Background Paper for Proposed RESOLUTION AGENDA ITEM # 6 DATE: January 12, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING THE ENGAGEMENT OF DIETZE AND DAVIS, P.C. AS SPECIAL COUNSEL TO INTERVENE IN BLACK HILLS ELECTRIC RESOURCE PLAN PROCEEDINGS BEFORE THE COLORADO PUBLIC UTILITIES COMMISSION (DOCKET 08A -346E) AND AUTHORIZING PAYMENT OF SPECIAL COUNSEL COMPENSATION FROM THE CITY COUNCIL'S PROFESSIONAL SERVICES ACCOUNT ISSUE Should City Council approve the engagement of special counsel to represent the City in Black Hills Electric Resource Plan Proceedings before the Colorado Public Utilities Commission? RECOMMENDATION Approve the engagement. BACKGROUND Proceedings are pending before the Public Utilities Commission which may impact the rates Black Hills will charge its customers in the City of Pueblo. City's participation in those proceedings by special counsel in cooperation with the Office of Consumer Counsel will provide the City an opportunity to present argument to determine which plan for acquisition of electric power would benefit the City and its residents. FINANCIAL IMPACT The maximum fees and costs for special counsel will be $25,000 to be paid out of City Council's Professional Services Account. DIETZE AND DAVIS, P.C. ATTORNEYS AT LAW EstabGsbed in 1972 Peter C. Dietze Siena Square Building Tucker M. Katz Joel C. Davis 2060 Broadway, Suite 400 Joshua E. Anderson Robyn W. Kube Boulder, Colorado 80302 Karl F. Kumli, III* Telephone (303) 447 -1375 Of Counsel: David J. Thrower Fax (303) 440.9036 Carmen S. Danielson Joel C. Maguire www.dietzedavis.com Ren6e Ezer* Stephen A. Closky Email: Kar1K9dietzedayis.Con1 *Also admitted in California December 17, 2008 Thomas E. Jagger, Esq. City Attorney 503 N. Main Street, Suite 127 Pueblo, CO 81003 Re: Agreement for Legal Services Dear Tom: On behalf of Dietze and Davis, P.C., I would like to thank you for choosing our Firm to represent the City of Pueblo in connection with its intervention in Black Hills Electric Resource Plan (ERP) before the Colorado Public Utilities Commission (Docket 08A- 346E). We understand that pursuant to Section 6 -7 of the Charter of the City of Pueblo, we are retained as special counsel to represent the City of Pueblo and in such capacity will serve under your direction as City Attorney. As we have discussed, Pueblo's participation in this docket will be limited, as we are intervening after the date for submitting testimony. I have spoken with all other parties in this docket, and no party opposes our intervention. The purpose of this letter is to confirm the terms upon which our services will be provided. Colorado law now requires that we reduce to writing all the terms of our engagement by you. For many of our clients with whom we have done business on a "handshake basis" for many years, please know that this added formality is not intended in any manner to detract from the overriding importance of our personal and professional relationship with you. I will have primary responsibility for your representation and will utilize other Firm lawyers and paralegals as I believe appropriate under the circumstances. We will provide legal counsel to you in accordance with this letter and in reliance upon information and guidance provided by you. We also agree to keep you reasonably informed of progress and developments, and to respond to your inquiries. To enable us to represent you effectively, you agree to cooperate fully with us in all matters relating to your case, and to fully and accurately disclose to us all facts and documents that may be relevant to the matter or that we may otherwise request. You also will make yourself reasonably available to attend meetings, discovery proceedings and conferences, hearings and other proceedings. You also agree to pay our statements for services and other charges as stated below. The continued acceptance of these services constitutes an agreement to pay for them. Thomas E. Jagger, Esq. City of Pueblo December 17, 2008 Page 2 Either at the commencement or during the course of our representation, we may express opinions or beliefs concerning, litigation or various courses of action and the results that might be anticipated. Any such statement made by any attorney or employee of our Firm is intended to be an expression of opinion only, based on information available to us at the time, and should not be construed by you as a promise or guarantee. In accord with our discussions, our bills in this matter will not exceed $25,000.00 without prior written authorization from the City. Our fees will be based on the amount of time spent on your behalf. Each lawyer and paralegal has an hourly billing rate based generally on experience and special knowledge. My time is currently billed at the rate of $250.00 per hour; the hourly billing rates for other attorneys in the Firm range from $195 to $350. Paralegal time is billed at rates in the range of $100 to $140 per hour. These billing rates are adjusted periodically, generally on an annual basis. When we change rates, we will advise you in writing and request that you sign an acknowledgment of the new hourly rate. If we do not receive prompt written consent to the new hourly rate (i.e., within 30 days of the request), we may elect to terminate representation of you in accordance with our professional obligations to you, as your counsel. Services performed after the effective date of the new rates will be charged at the new rates. It is understood that the hourly time charges include, but are not limited to, telephone conferences, office conferences, legal research, review of file materials and documents sent or received, drafting of documents, office memoranda and correspondence, electronic correspondence (email), and preparation for and attendance at trials, hearings and conferences, where appropriate. It is further understood that actual costs, including, but not limited to long distance telephone calls, photocopies, printing, mileage, filing fees, recording fees, computerized legal research, postage, service of process, and transcripts will either be paid by this Firm and then billed to you, or sent to you for direct payment. Many Colorado courts now require that all pleadings in district court civil cases be electronically filed. No paper pleadings will be accepted by these courts in the future. In the event litigation is required, all electronic filing fees, including ordinary filings, service to other parties, notice, accessing documents, and /or additional electronic filing fees required to be paid will also be shown on your invoice. Billings will be submitted to you on a monthly basis and upon completion of our services in this matter. Payment may be made by cash, check, VISA, or MasterCard. For your convenience, you may provide advanced authorization for the Firm to charge the amount billed each month directly to your credit card. The failure to promptly pay any monthly statement upon its receipt, or to pay a deposit when requested, shall relieve the Firm, after notice to and discussions with you, of any further obligation to ftirnish legal services on your behalf. You authorize us to retain any investigators, consultants or experts necessary in our judgment to represent your interests in this matter. At our option, we may forward third -party charges directly to you for payment. 12/17/08 11:09 A1v1R\6\6512 \003 \Engagement leccendoc Thomas E. Jagger, Esq. City of Pueblo December 17, 2008 Page 3 Once a trial or hearing date is set, if applicable, we will require you to pay all amounts then owing to us and to deposit with us the fees we estimate will be incurred in preparing for and completing the trial or arbitration, as well as jury fees and arbitration fees likely to be assessed. If you fail to timely pay any additional deposit requested, we will have the right to cease performing further work and to withdraw from the representation. As we have discussed, the fees and costs relating to this matter are not predictable. Accordingly, we have made no commitment to you concerning the maximum fees and costs that will be necessary to resolve or complete this matter. Any estimate of fees and costs that we may have discussed represents only an estimate. It is also expressly understood that payment of the Firm's fees and costs is in no way contingent on the ultimate outcome of the matter. You may terminate our representation at any time by notifying us. Your tennination of our services will not affect your responsibility for payment of outstanding statements and accrued fees and expenses incurred before termination or in connection with an orderly transition of the matter. If such termination occurs, your papers and property will be returned to you promptly upon receipt of payment for outstanding fees and costs. The Firm will retain its own files, including lawyer work product, pertaining to the matter. We may withdraw from representation if you fail to fulfill your obligations under this agreement, including your obligation to pay our fees and expenses, or as permitted or required under any applicable standards of professional conduct or rules of court, or upon reasonable notice to you. You agree to bring any disputes or questions as to fees or costs to the attention of the responsible attorney or our bookkeeper, in writing, within fifteen days of receipt of the bill. If agreement cannot be reached, and either party wishes to pursue a resolution, the matter shall be submitted to the legal fee arbitration committee of the Colorado Bar Association for a binding and judicially enforceable arbitration award. In that event, the prevailing party shall be entitled to reasonable attorneys' fees and costs so incurred. Once we have completed our work on your behalf and payment has been received in full, we will close our file on this matter. You are entitled, upon your request, to the return of all documents that you have provided to us and all original documents remaining in our possession without additional charge. You are also entitled to copies of any of the documents in our files, other than our notes and working documents, at your expense. Our office policy is to move the file to storage off -site and, after seven years, destroy the file. We do attempt to notify you prior to destruction at the last address you have provided us so that you can claim the file rather than it being destroyed. Please review this letter carefully and, if it meets with your approval, sign the enclosed copy of this letter and return it to me so that we may begin work. Please call me if you have any questions. If we have not received a signed copy of this fee and engagement letter within thirty days of today's date, we will assume that you have obtained other counsel. The Firm will close 12/17/05 11:09AMR: \6 \65L2 \003 \EnRaRemen[leaer.doc Thomas E. Jagger, Esq. City of Pueblo December 17, 2008 Page 4 its files and do nothing further. In addition, the Finn will not be responsible for any matters involving your case, including, but not limited to, any statutes of limitation or other deadlines which you may face. Please review the terms of the foregoing fee and representation arrangement carefully and acknowledge its acceptance by signing and dating the enclosed copy and promptly returning it to me in the enclosed envelope, along with the requested retainer. If you have any questions, please call me. Thank you. Very truly yours, DIETZE AND DAVIS, P.C. Karl F. Kumli, III Agreed to this 1 2 7 21 � day of ��� , 2008. CITY OF PUEBLO By:,/ o.. Thomas E. Jagger ; it ttorney 12/17/05 l 1:11 AMR: \6\6512 \603 \Engagement lettendu