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HomeMy WebLinkAbout13094RESOLUTION NO. 13094 A RESOLUTION ENGAGING SILVER AND DEBOSKEY, P.C., TO PROVIDE LEGAL SERVICES TO THE CITY RELATING TO THE LISTING OF THE COLORADO SMELTER SITE ON THE NATIONAL PRIORITIES LIST BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Legal Services Agreement between Silver and DeBoskey, P.C. and the City of Pueblo, dated October 17, 2014, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The City Manager’s signature on and execution of the engagement letter on behalf of the City is hereby ratified. SECTION 2. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and the attached Legal Services Agreement to effectuate purposes of same. SECTION 3. This Resolution shall become effective immediately upon final passage. INTRODUCED: November 10, 2014 BY: Chris Nicoll City Clerk’s Office Item # M-7 Background Paper for Proposed Resolution COUNCIL MEETING DATE: November 10, 2014 TO: Vice President Ami Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Daniel C. Kogovsek, City Attorney, Law Department SUBJECT: A RESOLUTION ENGAGING SILVER AND DEBOSKEY, P.C., TO PROVIDE LEGAL SERVICES TO THE CITY RELATING TO THE LISTING OF THE COLORADO SMELTER SITE ON THE NATIONAL PRIORITIES LIST SUMMARY: Attached is a proposed Resolution authorizing the City to engage Silver and DeBoskey, P.C., to provide legal services relating to the listing of the Colorado Smelter site on the National Priorities List. PREVIOUS COUNCIL ACTION: None. BACKGROUND: The U.S. Environmental Protection Agency (“EPA”) is in the process of listing the Colorado Smelter site, located in the Eilers neighborhood of the City, on the National Priorities List (“Superfund” list) under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) 42 U.S.C. 9601-9675. Section 42 U.S.C. 9706(a) of CERCLA provides that the owner of land within a Superfund site which contains hazardous substances “shall be liable for all costs of removal or remedial action incurred by the United States Government or a State.” The EPA may seek to hold the City liable for costs associated with the removal or containment of lead and arsenic in Benedict Park and the alleys and rights of way within the Eilers neighborhood. It would be in the best interest of the City to engage the services of legal counsel with experience in environmental law. FINANCIAL IMPLICATIONS: The total cost of this engagement to the City is unknown. Robert R. Marsh, a partner in the firm of Silver and DeBoskey, P.C. has agreed to represent the City at the reduced rate of $295.00 per hour. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: The City could engage a different firm to provide these services. RECOMMENDATION: Approve the engagement. Attachments: Legal services agreement Robert R.Marsh Direct: 303.953.3764 Email:marshr@s-d.com October 17,2014 Sent via Electronic Mail to DKo2ovsek(a)pueblo.us Daniel C.Kogovsek,Esq., City Attorney City of Pueblo Law Department 1 City Hall Place,Third Floor Pueblo, Colorado 81003 Re, Colorado Smelter Site Dear Dan: It has been a pleasure speaking with you about the EPA's activities at the Colorado Smelter site and the City of Pueblo's ("City") adjacent. We are happy to assist with this matter and, as of the preparation of this letter, have confirmed the absence of any conflict that would prevent our doing so. As you know, Colorado's ethical rules governing lawyers also require us to communicate, in writing,the manner in which our fees will accrue. Accordingly, this letter sets forth the fee agreement between the City and this law firm, and will apply to any services requested on its behalf absent our reaching a separate, express written agreement with respect to those services. We will charge for our services at an hourly rate,based upon the actual time expended in rendering those services,and measured in increments of one-tenth of one hour. In consideration of our relationship and the City's circumstances, the firm has agreed to discount my hourly rate for this matter to $295.00 per hour. As you know, that is a substantial reduction from my usual hourly rate. I will also involve my colleague, Lisha McKinley, in the case as appropriate. Lisha's rate will be $240.00 per hour. Rates for the other attorneys in the firm vary from $225.00 to$480.00 per hour. Whenever appropriate,we may employ a paralegal or law clerk to perform services, which services will be billed at lower rates ranging from $120.00 to $150.00 per hour. These rates may be increased at some time in the future. By signing this agreement, the City agrees to pay for our services, including any services rendered before the date of this agreement. The City also agrees to fully reimburse the firm for any reasonable out-of-pocket expenses incurred on its behalf (such as copying costs, filing fees, recording fees, postage, deposition costs, expert witness fees,mileage and the like). We understand that you will be our point of contact with the City and that we will coordinate our work on behalf of the City through your office. Invoices for costs in excess of $500.00 will be forwarded to you for payment directly to the vendor. Expenses for other than routine matters will not be incurred without your prior authorization. nn SILVER IY DEBOSKEY - A PROFESSIONAL CORPORATION The Smith Mansion 1801 York Street Denver,CO 80206 www.silverdeboskey.com p: 303.399.3000 f: 303.399.2650 SILVER&?DEBOSKEY APROFFSSIONALCORPORATION )v Daniel C. Kogovsek,Esq., City Attorney October 17,2014 Page 2 We will invoice the City on a regular monthly basis for all services performed and costs expended. Any amount billed is due upon receipt of the invoice and, if not paid within sixty days after the date of the invoice, will draw interest at the rate of 1-1/2% per month (18% per annum) commencing on the date of the invoice. If legal action is necessary to collect amounts due and owing, or any other dispute arises concerning fees, costs, or charges payable under this agreement, the City and this firm mutually agree to submit the matter to arbitration before the Colorado Bar Association's committee on fee disputes, or in Denver before such other arbiter as shall be mutually agreed upon. In addition,the City will be liable to Silver& DeBoskey for its reasonable attorneys' fees and costs incurred in any effort to collect past-due amounts. We will retain our entire file on this matter for forty-five days following the conclusion of this engagement. During that time, we will return to you any original records in our possession and, upon request, be happy to provide you a complete copy of the file or any portions of the file that you may desire. No sooner than forty-five days following the conclusion of this engagement, we will review our file, retain such portions of the file as we may deem necessary and destroy those portions of the file that we du nut believe should be preserved. The portions of the file to be preserved may then be scanned or sent offsite for long-term storage and scheduled for destruction at a later date. Your signature on this fee agreement constitutes your permission for us to destroy, without further notice to you, all or any portions of your file as described above. We may communicate with you and you may communicate with us via electronic mail. As with any method of communication,there are inherent risks associated with the transmission of confidential information by electronic mail. If you have any concerns in that regard, we are happy to discuss them with you. Please excuse the formality of this letter. We appreciate the opportunity to provide legal services to the City and look forward to working with you again. If you have any questions concerning any of the above,please discuss them with me before you sign this fee agreement. If this fee agreement does, however, accurately reflect our agreement to provide legal services to the City, please arrange for the City Manager's signature where indicated below and return the original countersigned copy of this letter to me at your convenience. SILVE1L&DEBOSKEY PROFESSIONAL CORPORATION t T Daniel C.Kogovsek,Esq., City Attorney October 17,2014 Page 3 Sincerely yours, SILVER&DeBOSKEY, A Professional Corporation By: Robert R. Marsh ACKNOWLEDGED AND AGREED: CITY OF PUEBLO By: ^ 10 - W - 1cl Sam Azad, City Manager Date RRM/jdk ETI8S1 APPROVED AS TO FORM AND CONTENT. ` atm A'( .0 o 14. 2.6 Daniel C. Kogovsek, City Attordey i0 .— a0 - ,1-1- Date