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HomeMy WebLinkAbout09617ORDINANCE NO. 9617 AN ORDINANCE APPROVING AN ENGAGEMENT AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND GREENBERG TRAURIG, LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Engagement Agreement for professional services dated of November 4, 2019, between the City of Pueblo, a Colorado municipal corporation and Greenberg Traurig, LLP, a New York limited liability partnership, a copy of which is attached hereto (”Agreement”) having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver the Agreement 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. The officers and staff of the City are authorized and directed to perform all acts consistent with this Ordinance and the attached Agreement to implement the policies and procedures described herein. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on November 25, 2019 . Final adoption of Ordinance by City Council on December 9, 2019 . President of City Council Action by the Mayor: ☒ Approved on December 10, 2019 . □ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ☐ Council did not act to override the Mayor's veto. ☐ Ordinance re-adopted on a vote of , on ☐ Council action on __________________failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-6 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: November 25, 2019 TO: Council President Dennis E. Flores and Members of City Council VIA: Brenda Armijo, Acting City Clerk CC: Mayor Nicholas A. Gradisar FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AN ENGAGEMENT AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND GREENBERG TRAURIG, LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT SUMMARY: Attached is an Ordinance approving an Engagement Agreement for professional services between the City and Greenberg Traurig, LLP, a New York limited liability partnership (“Attorneys”) to represent the City on water rights and related matters. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: Christopher L. Thorne has represented the City for many years on water rights and related matters including the City’s decreed Recreational In-Channel Diversion (“RICD”) water right which underlies the operation of the City’s Arkansas River Whitewater Park. Mr. Thorne has recently left the law firm of Hollard & Hart, LLP to work in the Denver office of Greenberg Traurig. Mr. Thorne’s change of firms requires that a new engagement agreement for professional services be entered into with Greenberg Traurig, LLP. FINANCIAL IMPLICATIONS: Mr. Thorne normal billing rate is $575 per hour. He has agreed to give the City a 26% government discount and to bill for his services at the rate of $425 per hour. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. ALTERNATIVES: If City Council does not approve this Ordinance, Attorneys will not be engaged and the City will be without legal representation on water rights and related matters including the City’s decreed RICD water right. RECOMMENDATION: City Staff recommends approval of this Ordinance. Attachments: Proposed Ordinance; proposed Engagement Agreement for professional services. GT GreenbergTraurig 11%. } NOV 0 1 2019/ t L rkw Christopher L. Thorne ? ` (303)572-6519 thornech@gtlaw.com November 4, 2019 VIA E-MAIL AND U.S. MAIL Daniel Kogovsek, Esq. City of Pueblo, Colorado 1 City Hall Place, Third Floor Pueblo, CO 81003 RE: Water Counsel to the City of Pueblo Engagement of Greenberg Traurig, LLP Dear Dan: Thank you for engaging Greenberg Traurig, LLP ("GT") and me as your attorneys in the above-referenced matter. We appreciate the opportunity to provide legal services to the City of Pueblo, Colorado ("you" or "Client"), relating to water rights and related water matters, as described in more detail below. I am excited to continue working with you and the City. This engagement letter,along with the attached Billing Policies, constitutes the agreement ("Agreement") between you and GT, and sets forth the terms and conditions by which our firm will represent you. If this Agreement is acceptable, please sign and return a copy to me at your earliest convenience;the original is for your files. While we request a signed copy for our records, in the absence of you providing that, this Agreement will be effective if any services as to the Subject Matter defined below are rendered by us and accepted by you. Either return of a signed copy or acceptance of such services will constitute your acceptance of this Agreement, and make it effective as the contract governing this engagement. 1. Scope of Engagement: Our representation of you and this engagement will include representing the City of Pueblo on water rights and related matters, including matters relating to your decreed Recreational In-Channel Diversion water right (the "Subject Matter"). We have not been asked to represent you or anyone else affiliated with you in any other matter at this time. You and GT may agree to expand the scope of the Subject Matter from time to time, but that will occur and be effective only if agreed in writing by both you and us. Further, we and you or one of your affiliates may also agree upon other representations by GT. If that occurs, unless otherwise agreed in writing, this Agreement will also apply to such further representations. You are the only client for this engagement. Because of the proliferation of entities partially or wholly owned or owning other entities, and the problems this creates for lawyers in Greenberg Traurig,LLP Attorneys at Law 1141 1`5th `;trees I Suite 3300 Deliver,Ce 80.2t i i (,'(i(, C www.gtlaw.com City of Pueblo, Colorado November 4, 2019 Page 2 identifying potential conflicts of interest, as a general rule, GT does not regard an affiliate of a client entity (i.e., parent, subsidiary or other entity under common control), or a person owning or otherwise connected with the client (e.g., officer, director, member, partner, shareholder, owner, employee, etc.), as a client of GT for any purpose, unless a lawyer-client relationship has been established by express written agreement with GT. Similarly, we will not regard a representation that is adverse to such an affiliate or person, as being adverse to the client represented by GT under this Agreement. Accordingly, if there is such an affiliate or person you wish GT to regard as a client for conflict purposes, please let us know. Further, our representation of you does not constitute an obligation to advise you or represent you after this engagement is ended as to the Subject Matter, including without limitation in later proceedings or as to subsequent requirements you may have concerning the Subject Matter, or later legal or other developments that might have a bearing on your affairs or the Subject Matter. 2. Staffing: I will be the attorney principally responsible for this engagement. As we deem appropriate and consistent with the proper representation of our clients, we often use paralegals, junior attorneys, contract attorneys and staff members to assist in providing legal services. We believe use of such other team members, in consultation with and under supervision of more experienced attorneys, can enable us to economically and efficiently provide legal services. Thus, additional or different attorneys and paralegals may participate in this engagement, over time. If there are changes in staffing, you will be advised. If you wish different persons to be involved, we will discuss that with you to make sure that you are satisfied with the staffing. 3. Fees and Expenses: Unless otherwise agreed in writing, our fees in this engagement will be based upon the time spent by our personnel in accordance with the attached Billing Policies. My current billing rate is $425 per hour. Rates for other attorneys in this firm currently range from $325 per hour for the most junior associate to $845 per hour for our most senior attorneys. The rate for paralegals is currently $275-350 per hour. Depending on circumstances and the passage of time, our rates are subject to change as the engagement progresses. If that is to occur, we will discuss it with you in advance. In addition to fees for our legal services,this engagement may require you and us to pay or advance the expenses and disbursements of the type more fully discussed in the attached Billing Policies. When we advance such payments for a client, we do so to expedite the engagement in reliance on the client's promise to reimburse us for such payments promptly in accordance with the Billing Policies. Fees and expenses will be payable monthly in accordance with the attached Billing Policies. 4. Cooperation and Communication. To assist effective and efficient pursuit of this engagement,we are looking to you to provide us with the factual information,documents and other materials you have concerning the Subject Matter, and to keep us informed in that regard if and as you learn and receive more. We also look to you to keep us advised as to your expectations and any concerns you may have regarding our services during the engagement. Greenberg Traurig,LLP Attorneys at Law www.gtlaw.com City of Pueblo, Colorado November 4, 2019 Page 3 5. Termination and End of Representation: Subject to applicable court and Ethics Rules, GT or you may terminate this engagement at any time, for any reason. Otherwise, our engagement and representation will end automatically upon the earlier of our final bill for this engagement or six months after we have last recorded billable time for work on it, other than as to later requests for audit responses or information about the engagement. If, with our agreement, you later retain us to perform further or additional services, that will be confirmed in writing and our attorney/client relationship will be revived on the terms of this Agreement except to the extent that we agree in writing to new or supplemental terms of engagement. If we later inform you of developments that may be of interest, by newsletter or otherwise, that will not constitute continuation or revival of an attorney/client relationship. 6. No Guaranties: We have not given you any assurance or guarantee concerning the outcome or success of this engagement or our services, and have not accepted any contractual obligation in that regard. 7. Client Documents & Data: We will maintain the documents you give us in our client files for this engagement. At the conclusion of the engagement(or earlier, if appropriate), you may advise us which, if any, of the documents in our files you want given to you. We will retain those documents not given to you, and ultimately destroy them in accordance with our record retention practices. We may also retain copies of documents we give to you. 8. Privileges: Many but not all of our communications with you will be subject to the attorney-client privilege. Subject to the applicable Ethical Rules, we will seek to maintain that privilege unless you instruct or consent otherwise. You will advise us if your communications with us are subject to any other privilege or confidentiality agreement; so that we may take appropriate steps to comply with that. 9. Arbitration, We look forward to, and anticipate, a harmonious relationship between us. In the event you become dissatisfied for any reason with any aspect of our relationship, please bring that to our attention immediately. It is our belief that such problems can usually be resolved by good faith discussions between us. In the unlikely event that we cannot resolve such problems ourselves, we believe that any disputes in connection with this Agreement and are most likely to be resolved expeditiously and with less expense to all concerned by binding arbitration than by court action. By signing this letter, you agree that, to the extent permitted by law, any dispute arising out of or relating to this Agreement, including without limitation our relationship, our bills or billings, or our services (including, without limitation, alleged legal malpractice, negligence, breach of fiduciary duty, fraud,breach of contract or other alleged inadequacy of services or improper conduct by or of GT) will be resolved by confidential binding arbitration in Denver, Colorado, in accordance with the rules then in effect, and judgment on the award rendered in such arbitration may be entered in any court having jurisdiction thereof. In agreeing to arbitration, you understand that you are forgoing and giving up any right you may have to a jury trial and adjudication under any rules of court that Greenberg Tram ig,LLP Attorneys at Law www.gtlaw.com City of Pueblo, Colorado November 4, 2019 Page 4 do not apply in arbitration. If you do not wish to agree to arbitration of any disputes, claims or controversies please draw a line through and initial this paragraph. 10. Miscellaneous: This Agreement is personal to us and is not assignable by either of us without the written consent of the other. However, your financial obligations under this Agreement (including the attached Billing Policies) are binding on your and our successors and estates, heirs, trustees and other legal representatives. We have given you an opportunity to consult with other independent counsel and advisors of your choice regarding the terms and advisability of this Agreement before you sign it or accept our legal services. Your acceptance of this Agreement confirms that you have done so to the extent you wish, and that you are comfortable you have the information and advice you need in this regard. Please sign a copy of this letter and return it to me via electronic mail or otherwise to confirm your acceptance of this Agreement. Dan, I am truly honored and excited to be able to continue work with you and for the City. Very truly yours, GREENBERG TRAURIG, LLP By: "j7cri•-15-N~4..._ Enclosure Christ. .her L. Thorne ACCEPTED AND AGREED: CITY OF PUEBLO By: /`� 1:..ata&fe);Name: M1Qaegc (fact, ter Title: It'eark. Date: t Greenberg Traurig,LLP I Attorneys at Law www.gtlaw.com City of Pueblo, Colorado November 4, 2019 Page 5 BILLING POLICIES Introduction This document outlines our standard billing practices, supplementing and as a part of our Agreement with you. Fees Our fees are based on the time required to handle the matter at our normal individual lawyer/paralegal hourly rates. Rates for lawyers in the Firm range from$335 per hour for the most junior associates to $845 per hour for our most senior attorneys. The rate for paralegals is $275- 350 per hour. The rates of our lawyers and paralegals are subject to change. Any new rates will be implemented immediately after they are adopted and apply to services rendered after the effective date of them. You will be advised of rate changes, and may discuss them with us. We will charge for all time spent representing your interests, including without limitation telephone and office conferences with you or your representatives, co-counsel, opposing counsel, fact witnesses, consultants (if any) and others; conferences among our legal and paralegal personnel; legal due diligence; drafting and finalizing letters,emails,agreements, leases,pleadings and other such papers, providing and participation in document and written discovery; factual investigation; legal research; responding to client requests for additional information; responding to client requests to provide information to auditors such as during audits of financial statements; preparation for and attendance at depositions, hearings, mediations, closings, trials, or other proceedings; and travel (both local and out of town) when necessary. Hourly charges are applied to total time devoted to client representation. Costs and Expenses We have established prevailing rates for all charges that will be incurred during this engagement. We believe that GT's rates are competitive with those of comparable law firms. You will be responsible to pay all such charges incurred during this engagement and for reimbursing us for any actual expenses we advance on your behalf. Our charges may include without limitation travel, copying, facsimile charges, messenger services, long distance phone calls, computer research services, secretarial overtime and filing fees. These charges may also include any sales or service tax that may be applicable. Expenses of Outside Contractors Generally, expenses of outside contractors (such as court reporters, surveyors, title companies, experts and consultants) will be directly billed or directed to the client pursuant to engagement agreements in which payment and indemnification terms remain strictly between the client and the vendor. GT will not be responsible for payment of such services. Prompt payment of these charges is essential enable us to provide timely and efficient service to you, with the assistance of such outside contractors. Greenberg Traurig,LLP I Attorneys at Law www.gtlaw.com City of Pueblo, Colorado November 4, 2019 Page 6 If desired and if we are given sufficient expense deposits in advance, GT will directly pay outside contractors. If GT has done so without or before such a deposit, you will promptly reimbursed GT for whatever it has paid. Type of Invoice Unless otherwise agreed, we will send you a monthly invoice which reflects the amount of our fees and expenses attributable to this engagement during the prior month. At your option, the invoice will be either general or detailed. The general invoice will state the total fees due for legal work and the total expenses incurred and charged to the engagement. In the alternative,the invoice will provide detailed back-up showing the attorneys who worked on the matter, the work performed, the time spent on the task, and the total fee and expense amounts due. If you have special billing procedures or requirements, please advise us promptly, and we will attempt to bill you in accordance with them, to the extent feasible. Payment of Invoices Each invoice is payable upon receipt. Any unpaid balance not paid within thirty (30) days of the billing date may incur interest upon such balance at the rate of 1.5%per month or such lesser rate as may be the legally permissible maximum. If we receive a payment form you when more than one invoice is outstanding on any of the matters GT is working on for you, we will apply that payment to any such outstanding invoice, unless the payment is accompanied by the remittance copy of the specific invoice being paid or by some other written direction how you intend the payment to be applied. GT may discontinue representation, in accordance with applicable Ethical Rules, of any client or any matter where payment is more than forty-five (45) days in arrears, unless special arrangements in writing are approved by GT's Chief Executive Officer. Individual attorneys are not authorized to make such arrangements or to waive payment due-dates and the consequences of non-payment or overdue payment. In the event of arbitration or suit as to any unpaid fees or costs, if GT prevails, in addition to any other relief or remedy granted to it, GT will be paid or reimbursed for the reasonable value of our attorneys' fees and expenses for and in that proceeding. Retainers For certain types of matters, GT requires that clients provide an initial fee retainer and expense deposit. The exact amount of the retainer and deposit will be agreed to by the client and the billing attorney. Questions Regarding Billings Any questions regarding billing should be immediately directed to the billing attorney or to our Accounting Department. Greenberg Traurig,l.l.P I Attorneys at Law www.gtlaw.com