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HomeMy WebLinkAbout6690RESOLUTION NO. 6690 A RESOLUTION APPROVING PROFESSIONAL SERVICE CONTRACTS BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND R. W. BECK AND ASSOCIATES AND GORSUCH, KIRGIS, CAMPBELL, WALKER AND GROVER RELATING TO THE TRANSFER OF CENTEL CORPORATION - COLORADO'S FRANCHISE TO UTILICORP UNITED, INC. SECTION 1. The professional service contracts between Pueblo and R. W. Beck and Associates and Gorsuch, Kirgis, Campbell, Walker and Grover relating to the transfer of Centel Corporation- Colorado's franchise to UtiliCorp United, Inc., copies of which are attached hereto and incorporated herein, having been approved as to form by the City Attorney, are hereby approved. The President of the City Council is authorized and directed to execute said consulting contracts in the name of and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SE CTION 2. This Resolution shall become effective upon final passage. INTRODUCED: February 25, 1991 By DR G G Councilperson ATTEST: APPROVED: Ci y Clerk Vice President of the City Council TJ 50.14 Exhibit A Professional Services Agreement January 24, 1991 SCOPE OF SERVICES FRANCHISE TR ANSFER The Cities of Pueblo, Florence, Rocky Ford and Canon City are interested in determining the potential effects upon their communities of the sale of the electric properties of Centel Electric — Colorado to UtiliCorp United and whether they should investigate the option of acquiring Centel Electric's utility business in Colorado. In order to assist the Cities, we propose to conduct an analysis of certain threshold issues and have developed the following Scope of Services. The principal objectives of the study are to compile and interpret information supplied by UtiliCorp and Centel relative to the proposed transfer of the franchises and to determine the approximate magnitude of any potential economic benefit which could be achieved through municipal ownership. The tasks to be performed include the following. (1) Make a brief review of the electrical transmission and distribution facilities in each of the Cities to determine their general appearance and condition. (2) Gather the most recent annual reports which Centel has filed with the Colorado Public Utilities Commission. (3) Gather and compile the information provided to the Cities relating to the transfer of the franchises. (4) Develop a power supply plan for the electric utility. (5) Estimate the purchase price of the transmission, distribution and production assets to be acquired. (b) Develop two estimates of the annual cost of owning and operating the electric utility for a ten year period based upon Centel`s prior operating costs and the power supply plan developed in Task 4. One estimate will be based upon ownership by an investor owned utility. The other will be based upon ownership by a publicly owned utility. (7) Prepare a report setting out our findings along with a discussion of the potential advantages and disadvantages of municipal ownership and the potential effects upon the communities of the proposed transfer of the franchise from Centel to UtiliCorp. CONTRACT FOR CONSULTING AND LEGAL SERVICES THIS CONTRACT FOR CONSULTING AND LEGAL SERV :ICES is made this � day of March , 1991, by and between GORSUCH, KIRGIS, CAMPBELL, WALKER AND GROVER, whose address is 1401 Seventeenth Street, Suite 1100, Post Office Box 17180, Denver, Colorado 80217, subsequently referred to as the "Firm ", and THE CITY OF PUEBLO, whose address is One City Hall Place, Pueblo, Colorado 81003, subsequently referred to as "Client" or "City ". RECITALS A. Client has requested that the Firm provide consulting and legal services in connection with the Client's investigation and response to an announcement by Centel, the electric public utility serving within the city under a franchise, that it intends to sell and transfer its electric public utility assets and rights to provide service in defined areas. B. To avoid misunderstanding, Client and Firm wish to formalize their agreement regarding representation by this written Contract. THEREFORE, Client and Firm agree as follows: 1. SCOPE OF EMPLOYMENT The Firm shall provide such consulting and legal services as set forth in the Scope of Work attached hereto and incorporated herein as Exhibit A. All work performed by the Firm shall be under the direction of the City Attorney. Client acknowledges that Firm has made no guarantee regarding the successful determination of these matters and all expressions relative thereto are matters of the Firm's preliminary opinions based on the Firm's current knowledge of the subject matters. 2. RECORDING TIME Tasks for which time shall be recorded include, but are not limited to, the following: Conferences with Client and others, legal research, factual investigation, preparation of correspondence and legal documents, reading and analyzing correspondence and legal documents, preparation for and appearances at meetings, travel to and from meetings, and telephone conversations with Client and others. 3. ATTORNEY'S FEES Client agrees to pay the Firm for its services. Client acknowledges that the factors considered by the Firm in determining its fee are: The time and effort required, complexity of the matters involved, difficulties encountered, skill required to perform the legal service properly, responsibility of the Firm, familiarity with the area of law involved, time limitations imposed by Client or the circumstances, amount involved, and results obtained. Client has requested that firm propose a flat fee, on a not to exceed maximum basis, for completion of the services described in Exhibit A. Firm has proposed a flat fee, on a not to exceed basis, of $10,000.00. Client agrees to pay this fee in accord with the billing provisions set forth in paragraph 6 hereof. 4. PROFESSIONAL STAFF The lawyers who may be providing the services described in Exhibit A are the following: William Hamilton McEwan Paula M. Connelly Malcolm M. Murray Joseph Wilson The firm reserves the right to use other of its lawyers, not named above, when in the judgment of Mr. McEwan, it would serve the best interest of the Client to do so and to bill their time at the rate approved by the Firm. Mr. McEwan will be the attorney in charge of Client's account with respect to the services provided hereunder, and, therefore, he will be the appropriate contact person for services to be rendered on Client's behalf by the Firm. Notwithstanding that, Client may call any attorney who is performing services hereunder for Client. 5. EXPENSES Client acknowledges the Firm may incur various expenses in providing services to Client. Some examples of these expenses are charges for filings, mileage, postage, -2- investigations, telephone calls, reports, photocopying, etc. Client shall reimburse the Firm for all expenses paid by the Firm, up to a maximum of $1,500.00, unless further authorized in writing by Client. Client shall be notified of these expenses by monthly billing. 6. BILLING Billing for services rendered hereunder will be submitted to Client in three (3) consecutive monthly statements equal to one -third of the fee described in paragraph 3 hereof, plus reimbursement for actual expenses incurred by Firm in accordance with paragraph 6. The first billing statement will be rendered on or about March 15, 1991. 7. TERMINATION OF EMPLOYMENT; WITHDRAWAL Client may terminate this Contract by notifying the Firm in writing. Client shall pay the Firm its fee for services rendered and expenses incurred to the date of such Firm's receipt of Client's letter of termination. If any such termination is effective prior to full payment of the fee described in paragraph 3 hereof, then Client agrees to pay Firm for time recorded since rendering of the most recent billing statement for the services provided to the date of termination at the hourly rates set forth in Exhibit: B attached hereto, provided, however, that such Firm billing, together with previous payments made by Client hereunder, shall not exceed the maximum fee described in paragraph 3 hereof. Such fee shall be due and payable within thirty (30) days after receipt of final statement after termination. The Firm may withdraw as counsel for Client and terminate this Contract by notifying Client in writing. If the Firm withdraws as Client's counsel and terminates this Contract, it will use reasonable precaution to avoid prejudice to the rights of Client by allowing a reasonable time for engagement of other counsel, delivering to Client all papers and property to which Client is entitled and complying with all applicable laws and rules. 8. ENTIRE AGREEMENT; MODIFICATION; APPLICABLE LAW; ACKNOWLEDGMENT This Contract contains the entire agreement of Client and Firm regarding the Firm's engagement. This Contract shall not be modified or revoked except by written agreement signed by Client and the Firm. This Contract shall be binding upon the Client and Firm and their successors and assigns. -3- This Contract shall be construed and governed by the laws of the State of Colorado. CLIENT ACKNOWLEDGES HAVING READ THIS CONTRACT IN ITS ENTIRETY AND DECLARES IT TO BE FAIR AND REASONABLE. FIRM: GORSUCH, KIRGIS, CAMPBELL, WALKER AND GROVER B f N ul��A i�+N /!ion Af CLIENT: CITY OF PUEBLO, STATE OF COLORADO ATTEST: By: . ty clerk By C ± t F-- � r Vl,-r< P,e r JP., t —C', 'u uc 4 APPROVED AS TO FORM: 74; -4- begmcb EXHIBIT A Legal Analysis Scope of Work I. Existing Franchises (30 %) A. Review existing electric franchise and provide analysis of legal rights available in responding to request for assignment of the franchise to a new non - municipal owner and provider of electric service. B. Identify renegotiation options that Client might consider in the existing franchise in return for acceptance of assignment of franchise to a new non - municipal owner and provider of electric service. C. Assist Client in identifying and obtaining documents required to investigate sale of electric utility by Centel and to determine policy issues raised by anticipated franchise transfer request. II. Regulatory Approval(s) of Sale to Non - Municipal Owner (40 %) A. Provide analysis of existing state laws addressing regulatory approval required by the Colorado Public Utilities Commission ("CPUC") for sale of Centel facilities to a non - municipal entity. B. Identify issues, options and general strategies for participation by Client in any regulatory approval proceeding before the CPUC. C. Provide analysis of whether similar regulatory approval for a sale to UtiliCorp United will be required by the Federal Energy Regulatory Commission. D. Draft proposed legislative amendments to Colorado Statute requiring CPUC approval of utility asset transfer request and assist Client in securing legislative enactment of such amendments. * The percentages shown opposite each section of this Scope of Work reflects the Firm's allocation of effort required to perform the total services described herein and that portion of the fee described in paragraph 3 of the foregoing contract assigned to each section. III. Framework for Municipal Ownership and Operation of Electric Utility (15 %) A. Review existing electric franchises, state laws, and local ordinances and provide analysis of each municipality's opportunities to acquire the existing electric facilities dedicated to service within the municipality. B. Review relevant state laws and court decisions regarding the methods of valuation of the electric facilities assuming the exercise of condemnation powers. C. Review relevant state laws addressing individual municipal ownership of electric utility. D. Provide overview of existing Colorado law permitting the creation of a separate political subdivision of the state by one or more municipalities for the purpose of providing the wholesale electric energy needs of the participating municipalities. IV. State Regulatory Jurisdiction Over Municipally -Owned Electric Utility A. Review authority of municipal electric utility to provide service outside municipal boundaries and interplay of CPUC regulatory jurisdiction in service territory certification. (100) B. Review extent of CPUC rate and service jurisdiction over municipal electric utility (a) serving exclusively within municipal boundaries, and (b) serving both within and outside municipal boundaries. V. Acquisition of Federal Power (5 %) A. Describe the entitlement and eligibility criteria for receipt of federal power at the wholesale level by a municipal electric utility. B. Identify the current timetable for possible receipt of federal power by a "new" municipal electric utility. behmcb EXHIBIT B GORSUCH, KIRGIS, CAMPBELL, WALKER AND GROVER Standard Fee Schedule January 1, 1991 Professionals $225 $160 Rhyne McEwan Hutchins $200 Wonstolen McGehee Funk Christianssen Baesman Mullins $150 $195 Murray Gorsuch Keefe Weinstein Savage Hausknecht $190 Flora Schaefer Connelly James (Colo. Spgs.) $185 Kapelke Riedesel Jablonski Kenison $180 Campbell Walker Grover King $175 Spiller Powell Terry Hyde $165 James (Denver) Parsons $145 Das $140 Dahl Kane Nadel $135 Noonan McKenzie $130 Hansen Brown $125 Stewart $120 Kennebeck Matuna Kelson (Denver) Akers (Denver) Hunter $110 Kelson (Colo. Spgs.) Akers (Colo. Spgs.) Wilson $105 Zurof f Oh Seserman Hansson $100 Brainerd Saltarelli $95 Petti Arnold Baird $90 Widner Ellis Nagle Ver Steeg $85 Kesinger Overhardt Smith GORSUCH, KIRGIS, CAMPBELL, WALKER AND GROVER Standard Fee Schedule January 1, 1991 Para - Professionals $75 $60 $55 Finch Garel Fiore Keltner Larson $70 Kully Laessle Boyer Mapstone Thompson $65 Peterson Mey Powell Reed* Wallace Bramhall Weygand *$75/h for computer work Law Clerks /Summer Associates - $65 Bennett Brion Cohen Cuj e Engeman Franklin Heizer El W B -206Q R. W. BECK AND ASSOCIATES En,!inrers and Consultants PROFESSIONAL SERVICES AGREEMENT Date January 24. 1991 CLIENT City of Pueblo Colorado One City Hall Place ADDKESSPueblo, Colorado 81003 P. S. A. No. CD- 2 535- AAIAAZ no11 r FRANCHISE TRANSFER Part I —Scope of Services See Exhibit A Part 11— Payment For services furnished, the Client shall pay R. W. Beck and Associate;, Consulting Engineer, a total amount of $30,000 Payment shall he made by the Client to the Consulting Engineer, upon submission of invoices, at the rate of $ 10 , 000 per month during the first three ( 3 ) months that services are rendered by the Consulting Engineer. The final payment of the remaining amount due shall be made within thirty (30) days after submission of the work to the Client. Part III — Standard Provisions (see following pages) Part IV— Special Provisions j/A ) Approved for CLIENT Approved for CONSULTING EN 'INEGIl BY: fly: ,d&� C. rich: title: Allen E, Berson Associate and Assistant Manager 13 lly: l � 4- C , � Title: "I Itie: Edward A. Ceci Registered Professional Engineer In the State of Colorado F R It. W. Beck and Associaleti PART III — STANDARD PROVISIONS III.A. Consulting Engineer's Organizations R. W. Beck and Associates is a partnership and R. W. Beck and Associates, Inc. is a corpora- tion owned and controlled by the partnership. Both entities are organized and operated under the laws of the State of Washington. It is expressly agreed that the partnership may be changed by addition or reduction in the number of the partners or redis- tribution of the partnership interests and this Agreement may be assigned to the partnership or to the corporation. The Consulting Engineer may as- sign the compensation from this Agreement to any other entity. III.B. Professional Services 1. The Consulting Engineer shall be consul- tant and advisor to the Client as an independent contractor and shall not be an employee of the Cli- ent. The Consulting Engineer shall not be an agent or representative of the Client except that the Consulting Engineer may act as the Client's agent in providing construction management services to the degree specifically authorized in Part IV - Special Provisions of this Professional Services Agreement. 2. The Consulting Engineer represents that the services furnished under this Agreement will be in accordance with generally accepted professional practices. Any estimate of cost of equipment, con- struction, ownership or operation furnished by the Consulting Engineer shall be the Consulting Engi- neer's opinion based upon its professional judgment and experience. The Consulting Engineer makes no other representation or warranty, express or im- plied. III.C. Change in Scope and Delays 1. If the provisions for payment in this Agreement provide for a fixed fee or a maximum payment for services, such fee or maximum is for the Scope of Services described in the Agreement. If. the Scope of Services is modified so that more or Less work or time is required, and such modification is accepted by the Client and the Consulting Engineer, the fee or maximum and the time shall be equitably adjusted. 2. In the event of delays in or failures of performance of the Consulting Engineer caused by circumstances beyond its control, the Consulting Engineer's fee or maximum and the time allowed shall be equitably adjusted, and such delays or failures shall not constitute a default or give rise to any claim against the Consulting Engineer. III.D. Relating, to Payment 1. The Consulting Engineer's "Salary Costs" allow for basic salary and personnel benefits, including: life, accident, disability and medical insurance; sick leave, holiday and vacation pay; social security, workers' compensation, unemploy- ment compensation and pension retirement contribu- tions; and similar employment - related costs. Basic salary per hour shall be twelve times current monthly salary for employees or current monthly drawings in lieu of salary for partners, exclusive of overtime, bonus or other profit participation payments, divided by 2,080. 2. The Consulting Engineer's "Out -of- Pocket Expenses" are those expenditures made by the Consulting Engineer, other than Salary Costs, costs of reproduction and computer services and costs of Special Consultants and Subcontractors, which are directly chargeable to the project and which would not otherwise have been incurred. Such expendi- tures include, but are not limited to, transporta- tion, lodging, subsistence, communications, liability and other insurance premiums when required by the Client in addition to the types and amounts currently carried by the Consulting Engineer, taxes other than those levied on the profits or net income of the Consulting Engineer, equipment rentals and repair, and special mailing, forts, materials and supplies required during the progress of the work. Reimbursement for out-of- pocket expenses shall be an amount equal to the cost thereof. 3. "Computer services" as used herein shall mean the use of electronic computing and informa- tion processing equipment, word processing equip- ment, data communications equipment, computer software, and related facilities and services of personnel necessary to operate and maintain such equipment and facilities. "Reproduction services" as used herein shall mean the use of printing and copying equipment, photographic equipment, and similar facilities and services of personnel to operate and maintain such equipment and facil- ities. Charges for computer and reproduction services shall he at the Consulting Engineer's established rates therefor which are in effect at the time of such usage. 4. In event of the inability or failure of the Client to pay as agreed, interest commencing sixty days after the date of invoice shall be paid by the Client to the Consulting Engineer on the last day of each month on all unpaid amounts due the Consulting Engineer at the interest rate for borrowed funds then currently available to the Consulting Engineer at the Rainier National Bank of Seattle. III -1 I R. IV. Beck and Associates PART 111 — STANDARD PROVISIONS III.E. Insurance The Consulting Engineer shall raintsin in effect, to the extent that such insurance is avail- able at reasonable cost, employer's liability, pro- fessional liability, comprehensive general liabil- ity (bodily injury and property damage) and compre- hensive automobile liability (bodily injury and property damage) insurance with respect to employ- ees and vehicles of the Consulting Engineer assigned to the prosecution of work under this Agreement, with each policy having maximum limits of not less than $5,000,000, and statutory workers' compensation protection. Upon written request, the Consulting Engineer will supply to the Client a description of each such insurance policy currently in effect, specifying the amount thereof. The Con- sulting Engineer will obtain and thereafter main- tain in effect, if reasonably available, such addi- tional insurance as may be requested by the Client, the cost of which shall be reimbursed by the Client. III.F. Liability In partial but specific consideration of the execution of this Agreement, the Client and Consulting Engineer agree as follows: 1. The Consulting Engineer shall indemnify and hold harmless the Client and its governing board, officers and employees from all claims, expenses and liability, following operation of applicable rights of contribution, arising out of negligent acts, errors or omissions of the Consulting Engineer and its employees, including claims made by employees of the Consulting Engineer; provided, however, such indemnification and hold harmless shall not exceed (a) the proceeds of any applicable insurance required to be maintained by the Consulting Engineer under the provisions of this Agreement or (b) $250,000, whichever is greater. 2. Tlie Client shall indemnify and hold harm- I ess Consulting Engineer, its partners, offi- cers, emp es and subcontractors from all claims, expenses and bility, following operation of applicable rights o contribution, arising out of negligent acts, errors omissions of the Client and its employees, i.ncluc claims made by employees of the Client and c 'Ills related to construct i—n, use, occupancy, ownarshi operation, maintenance or control of facilities re ed to services ro be perr�rmed under this Agreement. 3. The Client ! ,hall limit any and all claims of the C a ^ainst , e "onsultrng Engineer, its 1 ctnerS, offi, . , e, sloye or subcontractors arising nit of the erfonuar_e of this Agreement, to an amount not to exceed (a) the proceeds of any applicable insurance required to be maintained by the Consulting Engineer under the nrnvisions of this A�reearnt or ,t $- 10.C"", ..t•i�! t> greater. For amounts in excess of any proceeds of the ins ance required to he maintained by the Con- sulting En, eer under the provisions of this Agreement, the Tent shall indemnify the Consult- ing Engineer, its p, tillers, officers, employees and subcontractors against 1 expense or liability of any kind arising out of any aim for loss of life, bodily or personal injury, prop. darnag,e or other loss from any cause related to th furnishing of the services covered by this Agreemen provided, however, this indemnity shall not apply to sole negligence of the Consulting Engineer. 5. The Client and the Consulting Engineer shall not be liable to each other in any even[ for interest (except as otherwise provided); loss of anticipated revenues, earnings or profits; in- creased expense of operations; loss by reason of shutdown or non - operation due to late completion or otherwise; and consequential damages. 6. In any and all claims involving an employee of the Consulting Engineer or the Client, the indemnification obligation under this paragraph entitled "Liability" shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. III.G. Suspension or Termination of Services The Client or the Consulting Engineer may suspend or terminate any or all services covered in this Agreement at any time upon written notice in which event the Client shall pay the Consulting Engineer upon submission of invoices for all services rendered and expenses incurred to the effective date of such suspension or termination. I11.11. Construction Contractor's Performance and Safety The Consulting Engineer shall not be responsible: for safety on the Client's premises or project site, except for the safety of personnel of the Consulting Engineer, its Special Consultants and Subcontractors; for providing or assuring a safe place for the performance of the construction contractor's work; for safety precautions, programs or equipment; for construction means, methods, techniques, sequences or procedures; or for the construction contractor's failure to perform the work in accordance with the Contract Documents. I11-2 FIAN Q R. W. Beck and Associates PART III — STANDARD PROVISIONS III.I. Disposition of Documents 1. Upon completion of the services provided under this Agreement, the Consulting Engineer shall deliver to the Client one copy of all Reports, Specifications and Contract Documents and one transparency of each of the Drawings. The orig- inals of all Reports, Specifications, Drawings and Contract Documents shall be retained by the Con- sulting Engineer and upon request by the Client, the Consulting Engineer will furnish copies to the Client at actual cost of duplication and mailing. If such Reports, Specifications, Drawings or Con- tract Documents or reproductions thereof, or any other items relating to the services of the Con- sulting Engineer are changed in any way or used by the Client for any other project or purposes, the Client shall indemnify, defend and hold harmless the Consulting Engineer from all loss, damage, lia- bility or expense arising out of such change or use. 2. Except as specifically provided to the contrary in this Agreement, all computer programs, computer code and documents related thereto ( "computer software ") developed by or used by the Consulting Engineer in conjunction with the Con- sulting Engineer's work hereunder shall remain the sole and exclusive property of the Consulting Engi neer, and the Client shall have no right or title to or interest in such computer software. In the event the Consulting Engineer releases any such computer software to the Client, the Client shall protect the confidentiality of such computer soft- ware and shall not release or divulge such computer software to any other person or organization or let any other persons or organization use such computer software. In the event Client uses any such com- puter software or allows such computer software to be used by others, the Client shall indemnify and hold harmless the Consulting Engineer from all loss, damage, liability or expense arising out of such use. III.J. Equal Opportunity The Consulting Engineer will not knowingly discriminate against any employee or applicant for employment because of age, race, color, religion, sex, national origin, marital or veteran status or physical handicap. The Consulting Engineer will take affirmative action to the end that applicants are employed, and that employees are treated during employment, without such discrimination. III.K. Severability and Headings 1. If any part of this Agreement, including, but not limited to, any provision, paragraph, clause, phrase or words, is found to be in conflict with applicable laws, such part shall be inopera- tive, null and void insofar as it is in conflict with said Laws, but the remainder shall be given full force and effect. 2. The descriptive headings used in this Agreement have been inserted for convenience of reference only and shall in no way modify or restrict any of the terms and provisions of this Agreement. III.L. Notice All notices relating to this Agreement shall be in written form delivered in person or by Express Mail, Registered or Certified United States Mail, postage prepaid, to the Consulting Engineer or to the Client to the attention of its chief executive officer at the last business address of the principal office of the addressee known to the sender. - END OF PART III - III -3