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HomeMy WebLinkAbout11725RESOLUTION NO. 11725 A RESOLUTION ENGAGING DIETZE AND DAVIS, P.C. TO PROVIDE LEGAL SERVICES RELATING TO NEGOTIATIONS FOR BLACK HILLS ENERGY FRANCHISE WHEREAS, Black Hills Energy furnishes and sells electricity to the City and its residents under franchise which expires August 12, 2010, and WHEREAS, Black Hills Energy has submitted an application for franchise authority to furnish and sell electricity commencing upon expiration of the existing franchise subject to approval by a vote of the people ( "Franchise Agreement'), and WHEREAS, pursuant to Ordinance No. 5640 Black Hills Energy is required to reimburse the City for costs incurred in investigating, negotiating and approving the Franchise Agreement, and WHEREAS, it would be in the best interest of the City and customers of Black Hills Energy to engage the services of special legal counsel experienced in franchise negotiations to assist the City in investigating, negotiating and approving the Franchise Agreement, and WHEREAS, Karl F. Kumli, III of the law firm of Dietze and Davis, P.C. has such experience and is familiar with the structure and activities of Black Hills Energy in providing and furnishing electricity, and WHEREAS, pursuant to Section 6 -7 of the Charter of the City, the City Attorney consents to and approves the engagement of Dietze and Davis, P.C. as special counsel to provide legal services relating to the investigating, negotiating and approving the Black Hills Energy Franchise Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The engagement letter between Dietze and Davis, P.C. and the City of Pueblo, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the engagement letter in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2 Funds for services to be performed and costs expended in such representation shall be disbursed from the Professional Services Account in the City Council's 2009 and 2010 budget subject to reimbursement by Black Hills Energy. INTRODUCED: October 26, 2009 BY: Judy Weaver COUNCILPERSON APPR D' } �, PRESIDENTaf Cfty Council A77TSTED DY: CITY CLERK ED Background Paper for Proposed RESOLUTION AGENDA ITEM # N -6 DATE: October 26, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION ENGAGING DIETZE AND DAVIS, P.C. TO PROVIDE LEGAL SERVICES RELATING TO NEGOTIATIONS FOR BLACK HILLS ENERGY FRANCHISE ISSUE Should City engage Dietze and Davis to provide legal services relating to negotiations for Black Hills Energy franchise? Approve the engagement. BACKGROUND Black Hills Energy has submitted an application for franchise authority to furnish and sell electricity to the City and its residents commencing August 12, 2009 upon expiration of its existing franchise. It would be in the best interest of the City and City customers of Black Hills Energy to engage the services of legal counsel experienced in franchise negotiations to assist the City in investigating, negotiating and approving the proposed franchise. Pursuant to Ordinance No. 5640, Black Hills Energy is required to reimburse the City for costs incurred by the City in such investigation, negotiation and approval. FINANCIAL IMPACT Funds for services to be performed and costs expended in such representation shall be disbursed form the Professional Services Account in the City Council's 2009 and 2010 budget subject to reimbursement by Black Hills Energy. DIETZE AND DAVIS P.C. ATTORNEYS AT LAW Embftd ed m t9n Peter C. Dietze Slam Square Building Tucker M. Katz Joel C. Davis 2060 Broadway, Suite 400 Joshua E. Anderson Robyn W. Ku Boulder, Colorado 80302 Mark D. Deosky Karl P. Kumli, III' Telephone (303) 447.1375 David J. Thrower Pax (303) 440.9036 - Of couaseb Joel C. Maguire www dietzedavia.com Carmen S. Danielson Renee Esera Stephen A. Closky Email: KarIKCo?dletzedavis.eom aAlw admitted in California Star L. Waring October 16, 2009 Thomas E. Jagger, Esq. City of Pueblo 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 negotiation of franchise agreement with Black I3ills/Colorado Electric Utility. The purpose of this letter is to confirm the terms upon which our services will be provided. 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 I will have primary responsibility for the City's 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 the City 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. The City also agrees 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. 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 Thomas E. Jagger, Esq. October 16, 2009 Page 2 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. 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 cowl 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 furnish legal services on your behalf. Subject to authorization by the City Attorney and funds being appropriated and budgeted therefore, 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. 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. Thomas E. Jagger, Esq. October 16, 2009 Page 3 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 termination 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 re mainin g 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. Thomas E. Jagger, Esq. October 16, 2009 Page 4 Please review this letter carefully and, if it meets with your approval, print, sign and return a copy of this letter to me so that we may begin work. Please call me if you have any questions. Very truly yours, DIETZE AND DAVIS, P.C. Karl F. Kumli, III Agreed to this a7L` day of 1 2009. City of Pueblo 7 5- Thomas E. Ja er City Attorney