HomeMy WebLinkAbout10772ORDINANCE NO. 10772
AN ORDINANCE APPROVING AN ENGAGEMENT
AGREEMENT WITH KONCILJA ENERGY LAW AND POLICY
FOR REPRESENTATION IN PUBLIC UTILITIES COMMISSION
PROCEEDING NO. 24AL-0275E, APPROVING THE
CORRESPONDING JOINT INTEREST AGREEMENT, AND
AUTHORIZING THE MAYOR TO EXECUTE THE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Engagement Agreement retaining Koncilja Public Energy Law and Policy and the
corresponding Joint Representation Agreement, attached hereto and having each been
approved as to form by the City Attorney, are hereby approved.
SECTION 2.
The Mayor is hereby authorized to execute said Agreements for, and on behalf of, the
City, and the City Clerk is authorized to affix the seal of the City thereto and attest same. The
Mayor is further authorized to execute any and all other documents, consistent with and not
materially different than the Joint Representation Agreement, which may contain privileged and
confidential information.
SECTION 3.
The officers and staff of the City are authorized to perform any and all acts consistent
with this Ordinance and the attached Agreements to implement the policies and procedures
described herein.
SECTION 4.
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 August 12, 2024.
Final adoption of Ordinance by City Council on August 26, 2024.
____________________________
President of City Council
Action by the Mayor:
Approved on _______________.
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 _____________
____________________________
President of City Council
ATTEST
________________________________
Deputy City Clerk
City Clerk's Office Item # S1
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: August 26, 2024
TO: President Mark Aliff and Members of City Council
CC: Mayor Heather Graham
VIA: Marisa Stoller, City Clerk
FROM: Carla Sikes, City Attorney
SUBJECT: AN ORDINANCE APPROVING AN ENGAGEMENT AGREEMENT WITH
KONCILJA ENERGY LAW AND POLICY FOR REPRESENTATION IN
PUBLIC UTILITIES COMMISSION PROCEEDING NO. 24AL-0275E,
APPROVING THE CORRESPONDING JOINT INTEREST
AGREEMENT, AND AUTHORIZING THE MAYOR TO EXECUTE THE
SAME
SUMMARY:
This Ordinance approves an engagement agreement with Koncilja Energy Law and
Policy to represent the City in Public Utilities Commission Proceeding No. 24AL-0275E,
approves the corresponding Joint Representation Agreement and authorizes the Mayor
to sign the same.
PREVIOUS COUNCIL ACTION:
No prior Council action exists with respect to this matter.
BACKGROUND:
On June 14, 2024, Black Hills filed a rate increase review with the Colorado Public
electric system, which serves over 100,000 customers in Pueblo, Cañon City, Rocky
Ford and surrounding communities. Black Hills claims the purpose of this increase is to
recover necessary infrastructure investment and operating costs, including pay and
benefits for local employees.
Commission, Proceeding No. 24AL-0275E. The requested rate increase will have a
drastic negative impact on the citizens of Pueblo. Pueblo County and the Pueblo
The interests
of the City, Pueblo County and PEDCO are aligned against Black Hills.
The Joint Representation Agreement sets forth the obligations of Koncilja Energy Law
and Policy to each of the parties to the Agreement. It also provides the rights and
responsibilities of the parties as to each other. Pueblo County and PEDCO have
already signed the Joint Representation Agreement.
FINANCIAL IMPLICATIONS:
per hour for paralegal time. This rate will be billed 1/3 to each party to the Joint
Representation Agreement.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
City Council could decide not to approve the Engagement Agreement and Joint Interest
Agreement.
RECOMMENDATION:
Approval of the Ordinance.
ATTACHMENTS:
1. Frances Koncilja Black Hills - PUC Rate Case Engagement Agreement
2. Frances Koncilja Black Hills - PUC Rate Case Joint Interest Agreement
3. Frances Koncilja Black Hills - PUC Rate Case Exhibit A
AGREEMENT
THIS AGREEMENT, effective July 09, 2024, is entered into by and between the City of
Pueblo (hereinafter referred to as "City"), and Koncilja Public Energy Law and Policy, LLC
(her").
WITNESSETH:
WHEREAS City requires legal counsel to represent the interests of the City and its
residents in Proceeding No 24AL-0245E before the Colorado Public Utilities Commission in
which Black Hills of Colorado, LLC is requesting to increase base rate revenues and electric
rates.
WHEREAS the Firm is capable and qualified to represent the City and its citizens
regarding said matter at the Colorado Public Utility Commission and the parties desire to enter
into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the parties agree as follows:
I. ENGAGEMENT OF FIRM
City hereby engages and the Firm hereby accepts such engagement and is hired to perform the
work and services more particularly described herein and upon all of the terms and conditions set
forth in this Agreement.
II. SCOPE OF WORK AND FEES
The Scope of Work to be performed by the Firm is more particularly described in Exhibit
) attached hereto and incorporated herein by this reference. The parties
agree that as Work commences if the Work changes the parties agree to jointly prepare an
Amendment or Addendum to this Agreement to reflect any such change, definition and/or
refinement as may occur and be agreed upon by both parties.
III. COMPENSATION
Compensation for the services of the Firm shall be according to the fee structure and terms as set
forth in Exhibit A. Pueblo agrees to pay such compensation incurred in the performance of the
Work in accordance with Exhibit A.
IV. NO MULTI-FISCAL YEAR OBLIGATION ON CITY
This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing
herein shall constitute, nor deemed to constitute, the creation of a debt or multi-year fiscal
obligation or an obligation of future appropriations by the City, contrary to Article X, § 20
Colorado Constitution or any other constitutional or statutory debt limitation. The obligations of
the City under this Agreement are subject to annual appropriations made for that purpose by the
Board of City Commissioners.
V. TERMINATION
This Agreement may be terminated as follows:
a). By City. (i) For its convenience with 30 days notice to the Firm, or (ii) for cause if the
Firm materially breaches this Agreement through no fault of City and the Firm neither cures such
material breach nor makes reasonable progress towards cure within ten days after City has given
written notice of the alleged breach to the Firm.
b). By the Firm. (i) For its convenience with 30 days notice to the City; or (ii) for cause if
City materially breaches this Agreement through no fault of the Firm and City neither cures such
material breach nor makes reasonable progress towards cure within ten days after the Firm has
given written notice of the alleged breach to City.
c). Payment Upon Termination. In the event of termination, the Firm shall perform such
additional work at the direction of the City as is reasonably necessary for the orderly closing of
the Work. The Firm shall be compensated for all work performed prior to the effective date of
termination, plus work required by the City for the orderly closing of the Work.
VI. INDEMNIFICATION
The Firm agrees to indemnify, hold harmless and, not excluding the City's right to participate,
defend City, its subsidiary, parent, associated and/or affiliated entities, successors, or assigns, its
elected officials, trustees, employees, agents, volunteers, and any jurisdiction or agency issuing
permits for any negligent work or intentional misconduct by the Firm, hereinafter referred to as
indemnitee, from all suits and claims, including attorney's fees and cost of litigation, actions, loss,
damage, expense, cost or claims of any character or any nature arising out of the work done by the
Firm in fulfillment of the terms of this Agreement or on account of any act, claim or amount arising
or recovered under workers' compensation law or arising out of the failure of the Firm to conform
to any statutes, ordinances, regulation, law or court decree. It is agreed that the Firm will be
responsible for primary loss investigation, defense, and judgment costs where this Agreement of
indemnity applies. In consideration of the award of a contract, the Firm agrees to waive all rights
of subrogation against the City, its subsidiary, parent, associated and/or affiliated entities,
successors, or assigns, its elected officials, trustees, employees, agents, and volunteers for losses
arising from the work performed by the Firm for the City. By requiring this right to
indemnification, the Citty in no way waives or intends to waive the immunity protections provided
to the City and its employees under the Colorado Governmental Immunity Act, C.R.S. § 24-10-
101, et seq.
VII. INDEPENDENT CONTRACTOR
The parties understand and agree that the Firm shall, at all times during the term of this Agreement,
be deemed an independent contractor and not an employee of the City, and shall be responsible
for, and obligated to pay on behalf of its employees, all withholding taxes, social security,
compensation, and/or other taxes and shall indemnify and hold the City
harmless from and against any and all claims for the same period. The Firm acknowledges and
agrees that all of its personnel are its employees only, and not employees or agents of the City for
any purpose whatsoever, including for purposes o. The Firm has no
authority to enter into contracts or other binding obligations on behalf of the City.
VIII. PROHIBITION ON PUBLIC CONTRACTS FOR SERVICES REGARDING
EMPLOYMENT OF UNDOCUMENTED IMMIGRANTS
If the Firm has any employees or subcontractors, the Firm shall comply with the provisions of
C.R.S. § 8-17.5-101, et seq. and this Agreement. The Firm shall not knowingly employ or contract
with an undocumented immigrant to perform work under this contract; or enter into a contract with
a subcontractor that knowingly employs or contracts with an undocumented immigrant to perform
work under this Agreement.
By execution of this Agreement, the Firm certifies that it does not knowingly employ or contract
with an illegal alien who will perform work under this Agreement and that the Firm will participate
in either the Federal E-
-17.5-101 (3.7) and (3.3), in order to confirm
the eligibility of all employees who are newly hired for employment to perform work under this
Agreement.
A. The Firm shall not:
(i) Knowingly employ or contract with an undocumented immigrant to perform
work under this Agreement; or
(ii) Enter into a contract with a subcontractor that fails to certify to the Firm that
the subcontractor shall not knowingly employ or contract with an
undocumented immigrant to perform work under this Agreement.
B. The Firm has confirmed the employment eligibility of all employees who are newly
hired for employment to perform Work under this Agreement through participation in
either the E-Verify Program or Department Program.
C. If the Firm obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an undocumented immigrant, the
Firm shall:
(i) Notify the subcontractor and the City within three (3) days that the Firm has
actual knowledge that the subcontractor is employing or contracting with an
undocumented immigrant; and
(ii) Terminate the subcontract with the subcontractor if within three (3) days of
receiving the notice required pursuant to sub-paragraph (i) above, the
subcontractor does not stop employing or contracting with the illegal alien;
except that the Firm 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 an illegal
alien.
D. The Firm shall comply with any reasonable request by the Colorado Department of
Labor and Employment made in the course of an investigation that the Department is
undertaking pursuant to the authority established in C.R.S. § 8-17.5-102(5).
E. If the Firm violates this provision of this Agreement, the City may terminate this
contract for breach of contract and the Firm shall be liable for actual and consequential
damages to the City as required by law.
F. The City will notify the Office of the Secretary of State if the Firm violates this
provision of the Agreement, and the City terminates the Agreement for such breach.
IX. NOTICES
Any notices required or permitted under this Agreement shall be by personal delivery, electronic
mail, or Certified Mail sent the United States Post Office at the addresses set forth below:
Notice to CITY
Pueblo City
ATTN : Carla L. Sikes
City of Pueblo Department of Law
One City Hall Place
Pueblo, CO 81003
Phone : (719) 562-3896
E-Mail : csikes@pueblo.us
Notice to KONCILJA PUBLIC ENERGY LAW AND POLICY, LLC
Frances Koncilja
555 S. Harrison Lane
Denver, Co 80209
Phone : (303) 956-3160
E-Mail : fkoncilja@koncilja.com
X. GOVERNING LAW
This Agreement shall be construed and interpreted under the laws of the State of Colorado.
XI. SEVERABILITY
In the event one or more, but not all, of the provisions of this Agreement are declared to be unlawful
or unenforceable by a Court of competent jurisdiction, such determination shall not affect the
legality or enforceability of the remainder of the terms and provisions of this Agreement.
XII. BINDING
When executed by the parties hereto, this Agreement shall be a binding agreement and shall inure
to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.
XIII. MODIFICATION AND ASSIGNMENT
This Agreement may be modified only by a writing signed by each of the parties hereto. Neither
party may assign this Agreement without the express written permission of the other party which
permission may be denied for any reason, including an arbitrary reason.
XIV. DUPLICATES
This Agreement may be executed in duplicate original counterparts, each of which shall constitute
an original but all which shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement effective July XX.
2024.
KONCILJA ENERGY LAW AND POLICY, LLC
BY:
_________________________________________
Frances Koncilja Date
CITY OF PUEBLO
BY:
_________________________________________
Heather Graham, Mayor Date
APPROVED AS TO FORM:
__________________________________________
City Attorney Date
JOINT REPRESENTATION AGREEMENT
I. PARTIES
On June 14, 2024, Black Hills Colorado Electric, LLC (with the
Colorado Public Utility Commission, its Advice Letter No. 871 to Increase Base Rate Revenues
and Rates in Proceeding No. 24A-0275E. . The below parties have
similar interests and have agreed to jointly dispute the matters asserted by Black Hills and to
retain Koncilja Energy Law and Policy, LLC (Law Firm jointly represent them.
The parties to this Agreement effective July 9, 2024 are:
A.
B.
C.
II. DEFINITIONS
A. includes each person or entity executing this
Agreement and their agents, assigns, employees, representatives, and successors.
B. -0275E filed with the Colorado
Public Utilities Commission on June 14,2024.
III. RECITALS
A. In the Black Hills Rate Case, Black Hills seeks and additional $36,760,812 from
residents, businesses and commercial industry in their service territory which includes the City
and the County. These rate increases are, on average, an increase of approximately 21% across all
classes of customers and could be as high as 28%. Among other items, Black Hills seeks approval
of a higher profit in the amount of 10.5% and changes to depreciation schedules, changes to net
metering for solar customers, as well as the use of different rate schedules.
B. City, County and PEDCO have common interests, claims and interests in the Black
Hills Rate Case and believe they will mutually benefit from a coordinated investigation,
preparation and assertion of claims and defenses in the Black Hills Rate Case and the sharing of
attorney fees and costs.
C. In order to facilitate the preparation and assertion of the claims, Parties desire to
work together, share certain communications and information, and coordinate interests in the
Black Hills Rate Case without jeopardizing or waiving any attorney-client, work product,
accountant-client, or other privilege.
IV. AGREEMENT
The Parties agree as follows:
A. Any communications among the Parties or their Counsel on matters of common
interest in the investigation, preparation and prosecution of claims and/or possible settlement of
the Black Hills Rate Case are intended to and shall remain privileged and confidential
communications to the fullest extent allowable by applicable law and ethical standards.
B. This Agreement covers all materials, documents, information, discussions, or any
other matters that have been shared or disclosed among the Parties, their Counsel and Firm since
the filing of the Black Hills Rate Case
C. Each signatory to this Agreement has the right to terminate its participation at any
time. Termination shall be effective upon tendering express written notice to each Party, with a
copy to Law Firm. A terminating Party remains bound to maintain the confidentiality of all Joint
Interest Materials under this Agreement and information derived therefrom.
Pueblo County Attorney
By:_____________________________
Heather Graham, Mayor By:
City of Pueblo Cynthia L. Mitchell
One City Hall Place Pueblo County Attorney
th
Pueblo, Co 81003 215 W. 10 Street
Pueblo Co 81003
APPROVED AS TO FORM: 719-583-6636
mitchelc@pueblocounty.us
By: ____________________________
Carla L. Sikes, City Attorney
City of Pueblo
One City Hall Place
Pueblo, CO 81003
719-562-3896
csikes@pueblo.us
Jeff Shaw
By: ______________________
President Pueblo Economic Development
Frances Koncilja
Koncilja Energy Law and Policy, LLP
555 S. Harrison Lane
Denver, Co 80209
303-956-3160
fkoncilja@koncilja.com
