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HomeMy WebLinkAbout10126ORDINANCE NO. 10126 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN ENGAGEMENT LETTER WITH SETER & VANDER WALL, P.C. TO ADVISE THE CITY OF PUEBLO REGARDING PROPOSED METROPOLITAN DISTRICT SERVICE PLANS AND RELATED LAND USE MATTERS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Engagement Letter pertaining to the review of Metropolitan District Service Plans and related land use matters between the City of Pueblo, a Colorado municipal corporation and Seter & Vander Wall, P.C., dated February 4, 2022, a copy of which is attached hereto including all associated documents, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said Engagement Letter in the name of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Engagement Letter to implement the policies and procedures described therein. SECTION 3. This Ordinance shall become effective immediately upon final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on February 14, 2022 . Final adoption of Ordinance by City Council on February 28, 2022 . President of City Council Action by the Mayor: ☒ Approved on March 2, 2022 . □ 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-12 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: February 14, 2022 TO: President Heather Graham and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Scott Hobson, Acting Director of Planning and Community Development SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN ENGAGEMENT LETTER WITH SETER & VANDER WALL, P.C. TO ADVISE THE CITY OF PUEBLO REGARDING PROPOSED METROPOLITAN DISTRICT SERVICE PLANS AND RELATED LAND USE MATTERS SUMMARY: On January 13, 2022, the City received an application to approve a service plan for the proposed Andiamo Metropolitan District. The proposed Andiamo Metropolitan District, containing approximately 95 acres, is located south of Dillon Drive, east of Mesa View Drive, and north of Wills Boulevard. This Resolution approves an engagement letter with Seter & Vander Wall, P.C. to assist the City in the review of proposed Metropolitan District Service Plans. PREVIOUS COUNCIL ACTION: With City Council’s approval, Spencer Fane LLP was previously hired by the City in 2018 to assist in reviewing service plans for the North Vista Highlands, Pastora Ranch, Pikes Peak Park, and Villa Bella Metropolitan Districts. However, Matt Dalton, the partner from Spencer Fane LLP who previously advised the City on metropolitan districts and related land use matters has recently retired from the practice of law and so a different outside legal counsel is being engaged to represent the City. BACKGROUND: The City Law Department has authorized the assistance of Seter & Vander Wall, P.C. to assist the City in the review of the proposed metropolitan districts. The hourly rate for Seter & Vander Wall, P.C. is $410.00 per hour. The costs incurred by the City for the review of the service plans will be required to be paid by the applicant prior to any final action of City Council being provided to the Pueblo District Court. FINANCIAL IMPLICATIONS: There are no financial implications for the City. All fees charged by Seter & Vander Wall will be paid by the developers requesting City approval. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: If City Council does not approve this Ordinance, Seter & Vander Wall, P.C. will not be retained. RECOMMENDATION: Approval of the Ordinance. Attachments: Proposed Ordinance. Engagement Letter from Seter & Vander Wall, P.C. February 4, 2022 S ete r KIM J. SETER BARBARA T.VANDER WALL 1 JEFFREY E. ERB Vander Wall, P.C. COLIN B. MIELKE ELIZABETH A. DAUER ATTORNEYS AT LAW RUSSELL NEWTON CONOR A. KRUGER February 4, 2022 Sent via e-mail: City of Pueblo l City Hall Place, 3d Floor Pueblo, CO 81003 c/o Dan Kogovsek, City Attorney dkogovsek@pueblo.us Re: City of Pueblo, Colorado Engagement for Legal Services Dear Mr. Kogovsek: Thank you for retaining Seter& Vander Wall, P.C. (the "Firm")to provide legal services to the City of Pueblo (the "City") acting by and through its Law Department and Planning Department. This letter is to summarize and confirm the terms and conditions of the Firm's representation of the City. I. Scope of Representation and Personnel Seter& Vander Wall, PC's engagement is limited to matter on which you or the planning department request assistance or representation. Representation and projects will generally involve the review, comment and negotiation of special district or other government entity formations and operation, including the review and preparation of service plans and intergovernmental agreements. Assistance may also be required regarding development approvals and related matters. Kim Seter will be the attorney primarily responsible for your matters. In addition, some services may be provided by attorney Conor Kruger and paralegals Michele "Mitch" Barrasso and Natalie Fleming. Other attorneys and paralegals may be assigned to work on your matters as appropriate for the service being provided and expertise required. 2. Fees and Billing The Firm provides legal services on an hourly basis, billed in six-minute increments. The current hourly rate for Mr. Seter is $410 per hour. The current hourly rates for Mr. Kruger, Ms. Barrasso and Ms. Fleming are $275, $160 and $140 respectively. The rates of other personnel in our office vary from $140.00 to $490.00 per hour. All rates are subject to change January 1 of each year. {0057629 I} 7400 E.ORCHARD ROAD•SUITE 3300•GREENWOOD VILLAGE,CO 80111 •303-770-2700•FAx: 303-770-2701 www.svwpc.corn • e-mail: svwgsvwpc.com City of Pueblo, CO C/o Dan Kogovsek, City Attorney Engagement for Legal Services February 4, 2022 In addition to our time, we may incur costs on your behalf. Costs include photocopying expenses, delivery charges, filing and recording fees, Westlaw research charges and other expenses incurred when we advance materials or funds on your behalf. Costs are billed separately from legal fees and appear on your monthly invoice. Costs are to be paid on the same terms as legal fees. We do not charge for secretarial or other staff support except for paralegals and we do not add a surcharge or mark-up to any costs for any reason. We will provide you with a detailed invoice for services and costs incurred. Invoices are mailed monthly and payment is due 45 days from the date of the invoice. Past due invoices may be subject to a monthly late charge of 1.5% of the unpaid balance. 3. Communication The Firm primarily communicates with its clients using e-mail; the sending of documents and correspondence via the United States Post Office, UPS, FedEx, courier or other similar delivery service; and telephone. When sending e-mail, we endeavor to ensure that only the intended recipient(s)receives the e-mail. However, our e-mail communication is not encrypted. Communication via e-mail is not completely secure and e-mails may pass through servers controlled by third-parties and could be accessed by unauthorized third-parties. Although a common form of social communication, the Firm does not generally communicate with clients about client matters via text message, iMessage, or other form of instant messaging. Communications made via text, iMessage or instant messaging may not be received and risk not being attended to in a timely manner. Accordingly, communications with the Firm should be made via one of the other identified communication methods. Generally, communication between the client and the Firm are confidential and subject to the attorney-client privilege. This privilege is for the benefit of the client and if confidential communications are shared with third-parties by the client, that privilege may be lost. 4. Document Retention In the course of our representation, we will maintain a file of documents produced and received in the ordinary course of practice. Not all papers and electronic data are maintained in the ordinary course of practice. For example, multiple copies or drafts of the same document, or communications containing duplicative correspondence or concerning non-substantive communications may not be retained. We generally maintain our files in electronic format, and except for certain documents required to be maintained in hard copy, will convert paper copies to electronic format and dispose of the paper copy. It is the general policy of the Firm to retain your files in paper or electronic format for at least ten (10) years from the date our representation is complete, either by completion or resolution of the matter for which we were engaged or termination of the attorney-client relationship. In certain circumstances, such as where there is pending or threated litigation related to the matter which is known to the Firm, we may be required to maintain your files for a longer period. Following expiration of the ten-year retention period, your file may be destroyed without notice unless you have requested the original file to be delivered to you. 00576291; Page 2 of 6 City of Pueblo, CO C/o Dan Kogovsek, City Attorney Engagement for Legal Services February 4, 2022 Notwithstanding the foregoing policy, if the Firm is designated as a public records custodian for the City pursuant to the Colorado Open Records Act, Part 2 of Title 24, C.R.S., or is otherwise in possession of"public records" of the City, the Firm will retain and destroy those files in accordance with any approved document retention and destruction policy of the City, the Colorado State Archives or similar regulatory body. 5. Conflicts of Interest We have performed an internal review for potential conflicts of interest based on information provided to us. At this time, we do not have any conflicts of interest with any current or former clients that would preclude our representation of the City. Should a conflict of interest arise, we will advise you as soon as practicable, and if the conflict cannot be resolved or waived, the Firm may be required to withdraw from representation of the City. 6. Workers Without Authorization As a public entity you are required to obtain certifications from us concerning the employment of workers without authorization pursuant to Article 17.5 of Title 8 of the Colorado Revised Statutes. This certification is attached as Exhibit A and incorporated herein. 7. Termination Either of us is free to terminate this agreement at any time for any reason. However, it is important to both of us that any termination is in writing to allow for a clear allocation of responsibilities. Termination of legal services will not affect the City's responsibility for payment of legal services rendered and costs incurred before termination and incurred in connection with an orderly transition of legal services. Our efforts on your behalf may cease and we may withdraw from further representation at any time if an invoice is not timely paid. Please countersign this letter in the space provided if you agree to these terms and return a copy to our office. We look forward to working with you. Sincerely, SETER & VANDER WALL, P.C. Kim J. Seter KJS:kmg Enclosure ,00576291} Page 3 of 6 City of Pueblo, CO C/o Dan Kogovsek, City Attorney Engagement for Legal Services February 4, 2022 I have reviewed this proposal and agree to the engagement of Seter& Vander Wall, P.C. pursuant to the terms of representation described in this letter. City of Pueblo, Colorado 3(GA Ce. Zd.41; Ar c Print Name: /,CJ d/ f Cr, a rq r' Title: Q/P' Date: Z, a, At; ;00576291, Page 4 of 6 City of Pueblo, CO C/o Dan Kogovsek, City Attorney Engagement for Legal Services February 4, 2022 EXHIBIT A WORKER WITHOUT AUTHORIZATION PUBLIC CONTRACT FOR SERVICES Pursuant to §§ 8-17.5-101 to -103, C.R.S. 1. Seter & Vander Wall, P.C. (the "Contractor") acknowledges that, prior to executing the Contract, Contractor has certified that it does not knowingly employ or contract with a worker without authorization to perform work under the Contract and that the Contractor has participated in the E-Verify Program (formerly known as the Basic Pilot Program') (the "E- Verify Program") or the Colorado Department of Labor and Employment (the "Department") program established by § 8-17.5-IO2(5)(c), C.R.S. (the "Department Program") in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the Contract. 2. Contractor shall not: (a) Knowingly employ or contract with a worker without authorization to perform work under the Contract; or (b) Enter into a contract with a subcontractor who fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with a worker without authorization to perform work under the Contract. 3. The Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the Contract through participation in the E-Verify Program or the Department Program. (a) In the event the Contractor uses the Department Program for the employment verification described herein, the Contractor shall comply with the requirements mandated by § 8-17.5-102(5)(c), C.R.S. including: i. The Contractor shall comply with the provisions of § 8-17.5- 102(5)(c), C.R.S.; and ii. Contractor shall notify the Client of its determination to participate in the Department Program, and iii. The Contractor must, within twenty days after hiring an employee who is newly hired to perform work under the Contract, affirm that "Basic Pilot Program" is described in § 8-17.5-101(1),C.R.S.,as amended,and further defined as the Basic Pilot Employment Verification Program created in Public Law 208, 104`h Congress,as amended,and expanded in Public Law 156, 108`h Congress, as amended,that is administered by the United States Department of Homeland Security. 005762911 Page 5 of 6 City of Pueblo, CO C/o Dan Kogovsek, City Attorney Engagement for Legal Services February 4, 2022 the Contractor has examined the legal work status of the employee, retained file copies of the documents required by 8 U.S.C. § 1324a and not altered or falsified the identification documents for the employee, and the Contractor must provide a written, notarized copy of the affirmation of compliance with § 8-17.5-102(5)(c), C.R.S. to the Client. iv. The Contractor shall indemnify and hold harmless the Client, its directors, officials, agents and employees, from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorney's fees)and liabilities of, by or with respect to third parties, arising from the Contractor's failure to comply with the provisions of the Department Program and §§ 8-17.5-102(5)(c), C.R.S., arising under this Addendum or in any way related to performance hereof. The obligations of this indemnification shall survive the termination or expiration of this Addendum and the Contract. 4. Contractor is prohibited from using E-Verify Program or the Department Program procedures to undertake pre-employment screening of job applicants while the Contract is in effect. 5. If the Contractor obtains actual knowledge that a subcontractor performing work under the Contract knowingly employs or contracts with a worker without authorization, the Contractor shall: (a) Notify the subcontractor and the Client within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with a worker without authorization; and (b) Terminate the subcontract with the subcontractor if within three days of receiving the notice the subcontractor does not stop employing or contracting with the worker without authorization; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with a worker without authorization. 6. Contractor shall comply with any reasonable request by the Department made in the course of an investigation that the Department is undertaking, pursuant to the law. 7. If the Contractor violates any of the provisions under this Addendum, the Client may terminate the Contract for breach of contract. The Contractor shall be liable for actual and consequential damages to the Client. 005762911 Page 6 of 6