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HomeMy WebLinkAbout11758RESOLUTION NO. 11758 A RESOLUTION APPROVING A LEGAL SERVICES AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND VRANESH AND RAISCH, LLP BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SFrTinN 1 The Legal Services Agreement between Pueblo, a Municipal Corporation, and Vranesh and Raisch, LLP, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. Pursuant to Section 6 -7 of the City Charter, the City Attorney is authorized to execute and deliver the Legal Services Agreement for and on behalf of the City. SECTION 2 This Resolution shall become effective upon final passage and approval. INTRODUCED: December 14, 2009 F-W Randy Thurston COUNCILPERSON APPR D' } �- PRESIDENTaf Cfty Council A77TSTFD DY: CITY CLERK WIN Background Paper for Proposed RESOLUTION AGENDA ITEM # M -3 DATE: December 14, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING A LEGAL SERVICES AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND VRANESH AND RAISCH, LLP ISSUE Should the City Council approve the attached Legal Services Agreement? RECOMMENDATION Approve the Legal Services Agreement. BACKGROUND The Colorado Water Quality Control Commission (WQCC) conducts rulemaking proceedings and promulgates rules which affect the City's Sewer Utility by indirectly imposing standards that will be "translated" into treatment requirements. The City's Water Reclamation Facility is required by state and federal law to hold a discharge permit issued by the Colorado Water Quality Control Division which is currently up for renewal. The new permit will likely include provisions requiring facility modifications. Due to the anticipated large number of important WQCC rulemakings to occur in 2010 and the pending discharge permit renewal, it is recommended that the Sewer Utility retain special counsel experienced in such matters. Vranesh and Raisch, LLP, through Mr. Jerry W. Raisch, has substantial expertise representing numerous municipalities in these matters, and frequently does so on a cost - shared basis when multiple parties are represented in the same proceeding. Vranesh and Raisch is willing to represent Pueblo in these matters as special counsel, as may be directed by the City Attorney, and will serve under his direction in accordance with Section 6 -7 of the Charter. FINANCIAL IMPACT Funds for the legal services to be provided by Vranesh and Raisch, LLP have been appropriated in the 2010 Sewer Utility Enterprise Fund and will be paid solely therefrom. LEGAL SERVICES AGREEMENT THIS LEGAL SERVICES AGREEMENT ( "Agreement ") is entered into between Pueblo, a Municipal Corporation (hereafter "Client ") and VRANESH AND RAISCH, LLP (hereafter "Firm ") on the date entered below. In consideration of the mutual promises contained herein, the parties agree as follows: 1. Client hereby retains the Firm, on behalf of its Sewer Utility Enterprise ( "Enterprise "), to represent it as Special Counsel regarding water quality matters including, but not limited to, representing the Enterprise in hearings before the Colorado Water Quality Control Commission and in discharge permit matters before the Colorado Water Quality Control Division. The City Attorney of Pueblo shall request the services of the Firm from time to time for each specific matter included within the above scope of services, and pursuant to Section 6 -7 of the Pueblo Charter, the Firm shall serve solely under his direction. 2. It is agreed that the attorney with principal responsibility for performing and supervising the work for Client shall be Jerry W. Raisch. Client understands that the current billing rate for the supervising attorney is $295 per hour. The Firm reserves the right to assign other lawyers in the Firm to represent the Client, if in the Firm's reasonable judgment that becomes necessary. The Client understands that the current billing rate for other lawyers in the Firm ranges from $150 to $295 per hour. Other Firm personnel, such as law clerks and paralegal assistants, may be assigned to Client's matters in the discretion of the supervising attorney. Paralegal and clerk time is currently billed within the range of $30 to $60 per hour. It is understood that the above stated rates may be modified over time. The Firm's monthly statement to the Client shall reflect the current rates in effect at the time the service was performed. 3. Out -of- pocket expenses incurred on behalf of Client, such as filing costs, service of process, travel, photocopying, and deposition and transcript costs, will be in addition to the costs of legal services and Client agrees to pay all of said out -of- pocket expenses. 4. Client understands that the Firm will submit itemized bills for its time and expenditures on a monthly basis. The billing month of the Firm runs from the 26th day in one month to the 25th day in the next consecutive month. Client agrees that, subject to appropriations from the Sewer User Fund of Enterprise for legal services, it shall keep all billings paid on a current basis, and shall not allow overdue balances to accumulate unless it is specifically agreed to by the Firm in writing. The Firm reserves the right to assess a service charge of 1.0% per month on all balances which are more than 60 days past due after billing date, and to include such service charge in subsequent billings. Client agrees to pay such service charge if assessed. (The service charge represents an annual percentage rate of approximately 12.7% interest.) 5. Notwithstanding any other provision of this Agreement, all amounts payable to Firm hereunder shall be payable only out of the Sewer User Fund of Enterprise, and the Firm shall otherwise have no claim against City for payment of any amount under this Agreement except from available monies in said Sewer User Fund, This Agreement becomes effective when it has been signed by the Client and delivered to the Firm. This Agreement shall be binding on the parties, their heirs, successors, and assigns. VRANESH AND RAISCH, LLP Dated k; B y ��i(/, P7fr��l � 4; erry aisch CITY OF PUEBLO lated K Exhibit "A" State - Mandated or Related Contract Clauses As used in this section, "Contractor" shall mean the firm or entity ( whether referred to as Consultant, Company, Contractor, Architect, Accountant or by other term) entering into this Agreement with Pueblo, a Municipal Corporation ( which may be referred to in this Agreement as City, Client, Customer or by other term). PERA LIABILITY Contractor shall reimburse the City for the full amount of any employer contribution required to be paid by City to the Public Employees' Retirement Association ( "PERA ") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. Contractor shall fill out the questionnaire attached as Exhibit "1" and submit the completed form to City as part of the signed Agreement. SOLE SOURCE CONTRACTS - Article XXVIII of the Colorado Constitution was amended by vote of the people on November 4, 2008 ( "Amendment 54 ") to provide certain limitations on holders of "sole source' government contracts entered into by government entitles. On August 12, 2009, Denver District Court Judge Catherine Lemon issued an order granting a preliminary injunction against enforcement of Amendment 54, holding that it violated rights of free speech and association guaranteed by the First Amendment. The parties agree that if, at any time during the term of this Agreement, a court of appropriate jurisdiction determines that (1) Amendment 54 is constitutional or otherwise lawful under applicable law; or (2) Amendment 54, if lawful, applies to agreements such as this Agreement and must be included in such agreements, then City and Contractor agree to negotiate the inclusion of complying Amendment 54 language in this Agreement. STATE - IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK UNDER THIS CONTRACT (a) At or prior to the time for execution of this Contract, Contractor shall submit to the Purchasing Agent of the City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the "E- Verify Program" created in Public Law 208, 104` Congress, as amended and expanded in Public law 156, 108` Congress, as amended, that is administered by the United States Department of Homeland Security or the "Department Program" established pursuant to section 8- 17.5- 102(5)(c), C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not: (I) Knowingly employ or contract with an illegal alien to perform work under this Contract; (II) Enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. (c) The following state- imposed requirements apply to this Contract: (I) The Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E- Verify Program or Department Program. (II) The Contractor is prohibited from using either the E- Verify Program or Department Program procedures to undertake pre - employment screening of job applicants while this Contract is being performed. (III) If the Contractor obtains actual knowledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien to perform work under this Contract, the Contractor shall be required to: A. Notify the subcontractor and the Purchasing Agent of the City within three (3) days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if, during such three (3) days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as "CDLE ") made in the course of an investigation that CDLE is undertaking pursuant to its authority under §8- 17.5- 102(5), C.R.S. (d) Violation of this Section by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for City's actual and consequential damages. (e) Nothing in this Section shall be construed as requiring the Contractor to violate any terms of participation in the E- Verify Program. EXHIBIT "I" COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO Pursuant to section 24- 51- 1101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant, independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed, signed and returned to the City of Pueblo: (a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes , No X—. (b) If you answered "yes" to (a) above, please answer the following question: Are you an individual, sole proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No . If you answered "yes" please state which of the above entities best describes your business: (c) If you answered "yes" to both (a) and (b), please provide the name, address and social security number of each such PERA Retiree. Name Name Address Address Social Security Number Social Security Number (If more than two, please attach a supplemental list) Failure to accurately complete, sign and return this document to the City of Pueblo may result in your being denied the privilege or doing business with the City of Pueblo. w/, If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. 1 /ran -m4 o� A;w 4 L L P By Name: C4 Title: ,;Z4 For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation.