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HomeMy WebLinkAbout12473RESOLUTION NO. 12473 A RESOLUTION ENGAGING WILLIAM H. McEWAN AS SPECIAL COUNSEL TO PROVIDE LEGAL SERVICES IN CONNECTION WITH THE CITY’S LIGHT-EMITTING DIODE STREET LIGHT REPLACEMENT PROJECT WHEREAS, the City of Pueblo pays about $3.3 million a year for electricity and much of that, approximately $2.1 million, goes towards street lighting; and WHEREAS, the City has begun a project known as the Light-Emitting Diode Street Light Replacement Project (“LED Project”), to replace traditional, yellowish high- pressure sodium lights, to brighter, more efficient light-emitting diodes, or LEDs, which may result in a substantial decrease in the use and cost of electricity to the City; and WHEREAS, the City has a street lighting agreement and Franchise with Black Hills/Colorado Electric Utility Company, L.P. (“Black Hills”) under which Black Hills provides street lighting service to City; and WHEREAS, it would be in the best interest of the City to engage the services of special legal counsel experienced in electric utility matters to assist the City in negotiating with Black Hills an agreement or amendment of the street lighting agreement for the replacement of approximately 9100 street lights within the City with LED lights; and WHEREAS, William H. McEwan has such experience and is familiar with such street-lighting issues and tariffs related thereto, and WHEREAS, pursuant to Section 6-7 of the Charter of the City, the City Attorney consents to and approves the engagement of William H. McEwan as special counsel to provide legal services relating to the LED Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Legal Services Agreement between William H. McEwan 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 City Attorney is authorized to execute the Agreement on behalf of the City. SECTION 2. Funds for services to be performed and costs expended in such representation in the amount not to exceed $20,000 shall be paid from the Council Contingencies account. INTRODUCED: August 27, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE: August 27, 2012 AGENDA ITEM # M-3 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION ENGAGING WILLIAM H. McEWAN AS SPECIAL COUNSEL TO PROVIDE LEGAL SERVICES IN CONNECTION WITH THE CITY’S LIGHT-EMITTING DIODE STREET LIGHT REPLACEMENT PROJECT ISSUE Should William H. McEwan be engaged to assist in negotiations with Black Hills/Colorado Electric Company, L.P. regarding implementation of the LED Street Light Replacement Project? RECOMMENDATION Approve the Resolution. BACKGROUND City Council has directed the City Manager and his staff to move forward with a plan to implement an LED Street Lighting Replacement Project. Part of this effort will require negotiation of an agreement with Black Hills in order to provide the terms and conditions under which the conversion will occur, including but not limited to: timing, supplier selection, least cost implementation methodology, rate base effects, tariffs, and demand side management credits. The City Attorney recommends that special counsel knowledgeable with electric utility regulation and tariffs be retained to assist in the negotiation in order that the City reasonably control project implementation costs and maximize reduction of annual street light operating costs. FINANCIAL IMPACT The Resolution authorizes expenditure of up to $20,000 for these services from the Council Contingency Account. LEGAL SERVICES AGREEMENT THIS LEGAL SERVICES AGREEMENT ( "Agreement ") is entered into between Pueblo, a Municipal Corporation (hereafter "Client ") and William H. McEwan (hereafter "Attorney ") on the date entered below. In consideration of the mutual promises contained herein, the parties agree as follows: 1. Client hereby retains Attorney, to represent it as Special Counsel regarding the provision of legal services to the City Attorney in connection with a project referred to herein as the "LED Project" (Light- Emitting Diode Project). Pursuant to §6 -7 of the Pueblo Charter, the City Attorney approves retention of Attorney, who shall serve solely under his direction. Legal services to be provided include, but may not be limited to, advising and consulting with the City Attorney on the LED Project, reviewing, modifying and negotiating legal agreements, acting in a "review" capacity for the City Attorney of work prepared by him, participating in meetings and conference calls with parties or potential parties involved in the LED Project, and appearing before City Council on matters related to the LED Project, if requested by the City Attorney. 2. It is agreed that the attorney with principal responsibility for performing and supervising the work for Client shall be William H. McEwan. Client understands that the current billing rate for such attorney is $145 per hour. Attorney reserves the right to associate with other lawyers to assist in representation of the Client, if in Attorney's reasonable judgment that becomes necessary. The Client understands that the current billing rate for other lawyers does not exceed $145.00 per hour. Other personnel, such as law clerks and paralegal assistants, may be assigned to Client's matters in the discretion of Attorney. It is understood that the above stated rates may be modified over time. Attorney's periodic statements to the Client shall reflect the current rates in effect at the time the service was performed. Notwithstanding anything to the contrary herein, the maximum amount of the fee billings (the "ceiling ") under this Agreement (inclusive ofout -of- pocket expenses) shall not exceed $20,000, unless specifically authorized by the City Attorney in writing, and the Attorney's hourly fees shall be billed against this ceiling. 3. Out -of- pocket expenses incurred on behalf of Client, such as travel, photocopying, expert consultation fees, will be in addition to the cost of legal services and Client agrees to pay all of said out -of- pocket expenses; provided however, retention of any expert consultant must be specifically approved by the City Attorney in writing. 4. Client understands that Attorney will submit itemized bills for time and expenditures on a periodic, but not more frequent than monthly, basis. Client agrees that, subject to appropriations for such 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 Attorney in writing. Client shall endeavor to advise Attorney when no remaining available funds exist in any appropriation for the legal services. 5. The provisions set forth in Exhibit "A ", attached hereto shall constitute additional terms of this Agreement, as if set forth in full herein. This Agreement becomes effective when it has been signed by the Client and delivered to the Attorney. This Agreement shall be binding on the parties, their heirs, successors, and assigns. ATTORNEY: Dated August 16, 2012 By: w . William H. McEwan PUEBLO, a Municipal Corporation Dated August 27, 2012 By: Its: City Attorney 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. 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: (1) 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: (1) 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 "1" 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 -1 101(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. • 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. Signed August 16, 2012. Aldig ft Mew , Xeow Olt Name: William H. McEwan Title: Attorney 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.