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HomeMy WebLinkAbout14 Agreement with District Counsel Agenda Item # s *a DONNER J b Memorandum To: Board of Directors From: John Ulrich Date: November 5, 2007 Subject: Updated agreement with District Counsel 1. WHY THIS MATTER IS BEFORE THE BOARD Board authorization is required enter into an agreement. Objectives: 3. Manage the District in an open manner. 4. Manage the District in a responsible manner. Goals: 3.1 Conduct the District's business in a legal, open, transparent manner. 4.1 District will conduct its business in a lawful and ethical way. 2. HISTORY Resolution 81-07 appointed General Counsel and in subsequent years, the Law Office of Porter Simon provided letters to the General Manager and Board stating fee increases and confirming the opportunity to serve the District. 3. NEW INFORMATION This item involves a new agreement with Porter Simon to supersede a 1981 resolution 4. RECOMMENDATION I recommend that the Board approve the attached agreement of Porter Simon to represent and advise the District and serve as its General Counsel. o Ulrich, I erim Ge'Neral Manager Attachments: Letter from Porter Simon dated November 2, 2007 KELLEY R.CARROLL*• PAMELA M.EVERETT KENNETH P.CRAIG* Law Office Of BRIAN C.HANLEY* PETER H.CUTIITTA* JILL M.VACCHINA** JULIA S.GOLD*• PORTER • SIMON STEVEN C.GROSS* JANA L.GILL,OF COUNSEL STEPHEN C.LIEBERMAN Professional Corporation JAMES L.PORTERJR.* **Licensed only liNevada DAMES E.SIMON •-Certified Specialist in Estate Planning,Trusts,and Probate Law November 2, 2007 Reply to Truckee Office Truckee Donner Public Utility District 11570 Donner Pass Road P.O. Box 309 Truckee, CA 96160 Dear Board of Directors: This will confirm that on behalf of the Truckee Donner Public Utility District (referred to herein as "you," the "Client" or the "District"), you have asked our firm (referred to herein as "Porter Simon," "we" or the "firm") to represent and advise the District and serve as its General Counsel. This letter sets forth the agreement concerning our representation of the District. The California State Bar requires written fee agreements if attorneys' fees could exceed $1,000. Because it is imperative to a good attorney/client relationship, our firm requires written fee agreements when our representation begins. This helps all parties understand and agree upon the amount and method for payment of our fees. Therefore, we ask you to read this Agreement carefully. If it is acceptable, please sign and return a copy to us at your earliest convenience. Additionally, because both the State Bar and our firm require this Agreement, these terms will not take effect and we will have no obligation to provide legal services until you return a signed copy of this Agreement and pay the Retainer specified in Paragraph 1 (if any). The following paragraphs set forth the respective rights and obligations for the District and for Porter Simon under this Agreement. 1. Retainer Despite our usual policy of obtaining any advance payment, no retainer is requested. We are requesting that you return a signed copy of this letter. We will bill fees and costs monthly as they are incurred. These amounts are due when billed. If your matter results in litigation, it may be handled by our litigation group and may require a separate retainer and fee agreement detailing those litigation services. 100016770.DOC 3) TRucKEE OFFICE •40200 Truckee Airport Rd•Truckee,California 96161 • (530)587-2002•Fax(530)587-1316 RENO OFFICE- 675 Sierra Rose Drive,Ste. 116 • Reno,Nevada 89511 (775)322-6767 SOUTH LAKE TAHOE OFFICE 589 Tahoe Keys Blvd.,Suite E-8 South Lake Tahoe,California 96150 (530)541-8392•Fax(530)541-7498 www.portersimon.com November 2, 2007 Page 2 2. Fees The fee for attorney services currently ranges from $185 to $350 per hour. The fee for my time is $200.00 an hour for all matters, including attendance at meetings. The fee for legal assistants and law clerks ranges from$75 to $150 per hour. We reserve the right to increase these hourly rates after notice to the District. If the District declines to pay any increased rates, the firm reserves the right to withdraw as your attorney. We also impose minimum charges for certain services in our discretion - letters, for example, and documents using previously-developed forms. We charge for all time devoted to a client's matter, including but not limited to, the following "Services": attending conferences with you or others regarding your case, telephone calls, email, travel, depositions, reviewing correspondence received, court appearances, legal research and analysis, consulting with other attorneys and experts, preparing and reviewing documents and letters, and other work related to the matter. Although one attorney is generally responsible for a particular client matter, other attorneys, as well as legal assistants, law clerks and staff, maybe involved when appropriate. The legal personnel assigned to your matter may confer among themselves about the matter as required. When they do confer, jointly attend meetings, court hearings, or other proceedings, each person will charge for their time independently. Our hourly fee for attorney services includes typical, but not extraordinary, clerical and secretarial services. Attorneys, law clerks and legal assistants bill their time in minimum units of one tenth(.1) of one hour. It is impossible to predict in advance the total amount of our fees and costs. Representation of this nature may become more or less complicated than it first appears, and the time and effort that our firm invests will depend in part upon the cooperation, or lack of it, of other parties. In any event, we will try to keep the fees and costs as low as possible consistent with properly representing your interests. 3. Costs Unlike most law firms and as a courtesy and convenience to our clients, we include the following expenses in the hourly fee: ordinary postage, facsimile costs, photocopy costs, miscellaneous office supplies, and long distance telephone costs within the United States. In addition to our hourly fees and percentage costs, the District is responsible for other out-of-pocket expenses and costs, such as court filing fees, subpoena costs, deposition costs, accounting, appraisal, actuarial or other expert fees, investigation fees, consultant fees, messenger or delivery costs, express mailings, travel expenses, mileage, meals, lodging, computer generated research, calls to numbers outside the continental United States, photocopy projects completed by an outside service, and other similar costs. The District is responsible to pay all such costs as they are incurred, and to reimburse our office immediately for any such costs that we advance. 4. Payment of Fees and Costs Each month the firm will send you a statement of charges describing the fees for legal services and costs advanced. Payment for fees and costs advanced is due when billed to you. If payment is not made in full within thirty (30) days after the date of our invoice, we charge a {00016770.DOC 3 1 S:\FORMS\Fee AgreementTinal Form\Final Fee Agreement Form(Hourly Rate And Retainer Option).doc November 2, 2007 Page 3 monthly service charge of 1.5% per month (18% per annum) of the outstanding principal balance due. If we must initiate arbitration or file suit to collect our fees and costs, we will seek to recover our resulting costs, including attorneys' fees. Venue for any and all disputes and dispute resolution shall be in Nevada County, California unless Porter Simon and the District mutually agree otherwise. 5. Attorney Responsibilities We will provide those legal services reasonably required to represent you in any matters for which you request our services. We will take reasonable steps to keep the District informed of progress and to respond to your inquiries. 6. Client Responsibilities In addition to paying our bills promptly upon receipt, you agree to make as clear to us as possible your expectations and goals in all matters and to cooperate in our requests for information related to our representation. 7. No Guaranteed Outcome We will perform our professional services to the best of our ability, but we cannot guarantee any particular outcome. Any attorney's comments about the outcome of client matters or the amount of anticipated fees are expressions of individual opinion only and not a guarantee or promise. Actual fees may vary from estimates. 8. Discharge Withdrawal and Termination The District may terminate our representation at any time but will remain responsible for all fees and costs incurred through the time of such termination. Our office may withdraw from representation if you do not pay our invoices promptly, if your Retainer, if any, is not restored upon our request, if you fail to communicate with us or if anything else occurs that in our judgment impairs an effective attorney-client relationship. When we complete our Services, all unpaid charges will immediately become due and payable. Upon such completion and at your request, we will deliver your file and any of your property in our possession to you, whether or not you have paid for Services. 9. Miscellaneous This Agreement contains the entire agreement between the District and Porter Simon. No other agreement, statement, or promise, whether oral or written, made on or before the effective date of this Agreement shall be binding on either the District or Porter Simon. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason,the remainder of that provision and of the entire Agreement shall be severable and remain in effect. The headings in this Agreement are for reference only and do not describe, limit, or otherwise define the scope or intent of this Agreement or any of its provisions. The parties may modify this Agreement only in a writing by both parties and neither party may assign this Agreement. This Agreement will govern all legal Services Porter Simon performs on your behalf, commencing with the date the firm first performed Services. The date at the beginning of this Agreement is for reference 100016770.130C 3}S:\FORMS\Fee AgreementTinal Form\Final Fee Agreement Form(Hourly Rate And Retainer Option).doc November 2, 2007 Page 4 only. If more than one individual or representative for an entity signs below, each agrees to be liable for all obligations under this Agreement. 10. Dispute Resolution In the event of a dispute arising out of or connected with this letter Agreement that cannot be resolved by informal discussions between the District and Porter Simon, the dispute shall be resolved as follows: (a) Negotiation. Porter Simon and the District agree that they will attempt in good faith to resolve through negotiation any dispute, arising out of or relating to this Agreement. Either Porter Simon or the District may initiate negotiations by providing written notice in letter form to the other side, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within five(5) days with a detailed statement of its position on, and recommended solution to, the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each side with full settlement authority will meet at a mutually agreeable time and place within ten(10) days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute. If Porter Simon and the District are unable to resolve the dispute at the meeting by negotiations, either side may then initiate the dispute resolution provisions as outlined in (b)through(d) of this Paragraph 10. During any dispute and negotiation the District shall continue to timely pay Porter Simon for Services rendered for which obligations remain unsatisfied, even though such dispute may concern those Services. (b)Mediation. After engaging in negotiation as set forth in Paragraph 10(a), Porter Simon and the District then agrees to mediate any dispute or claim arising between them out of this Agreement or any resulting transaction before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally between the District and Porter Simon. If any party commences an arbitration or court action without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney's fees, even if they would otherwise be available to that party. (c) Arbitration. Porter Simon and the District agree that any dispute or claim in law or equity arising out of this Agreement or any resulting transaction, including without limitation claims of malpractice or professional negligence, that is not settled through mediation, shall be decided by neutral, binding arbitration and not by court action. The arbitration shall be conducted by a retired judge or justice selected by the District and Porter Simon jointly, unless both parties agree to a different arbitrator. The arbitrator shall render an award in accordance with substantive California law. In all other respects, the arbitration shall be conducted in accordance with Part III, Title 9 of the California Code of Civil Procedure. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The District and Porter Simon each shall have the right to discovery in accordance with Code of Civil Procedure § 1283.05. Small claims matters are exempt from arbitration. 100016770.DOC 3)S:\FORMS\Fee AgreementWinal FortnTinal Fee Agreement Form(Hourly Rate And Retainer Option).doc November 2, 2007 Page 5 (d)MFAA. Under Section 6201 of the California Business and Professions Code (the Mandatory Fee Arbitration Act, or "MFAA'), as a client, you have the right to resolve disputes regarding our fees and costs through nonbinding arbitration or through court action. We are required to give you written notice of this right to nonbinding arbitration before we initiate any proceeding seeking payment of fees. If you decline to elect nonbinding MFAA arbitration within thirty days of receiving the notice, the binding arbitration provisions set forth in paragraph(c) above will apply. Board President Tim Taylor's initials Porter Simon's initials Truckee Donner Public Utility District Please sign this Agreement and return it to the firm, keeping a copy for your records. If any part of it is not clear to you, feel free to ask me to explain it further before you sign. You have the right to consult another attorney about any aspect of this Agreement. We look forward to continuing our relationship with the District. Very truly yours, PORTER' SIMON Professional Corporation STEVEN C. GROSS gross@portersimon.com SCG/xS ENCLOSURE I understand and agree to the foregoing, including, without limitation, the arbitration and other dispute resolution provisions set forth in Paragraph 10, and acknowledge that I have received a copy of this Agreement. Dated: 92007 Tim Taylor, Board President Truckee Donner Public Utility District 100016770.130C 3}S:\F0RMSTee AgreementTinal Form\Final Fee Agreement Form(Hourly Rate And Retainer Option).doc � t RESOLUTION NO. 81227 OF THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT APPOINTING GENERAL COUNSEL BE IT RESOLVED by the Board of Directors of the Truckee Donner Public Utility District as follows: 1. The firm of wood, Porter, Simon and Graham, a Professional Corporation of Truckee, California, is hereby appointed general counsel of this District, to serve at the pleasure of the Board. 2. James E. Simon, a member of that firm, shall attend each regular meeting of this Board, unless excused by this Board, and shall be reasonably available to attend special meetings, upon appropriate notice, except with the consent of the Board, all advice and representation of general counsel shall be by or through Mr. Simon. 3. General counsel shall be compensated at the rate of Six Hundred and Twenty Five Dollars ($625) per month for at- tendance at both regular meetings of the Board, and in addition thereto, at the rate of Seventy Five Dollars ($75) an hour for all other services requested by this Board or the General Manager and performed by general 'Ov counsel including, but not limited to, consultation, 26 legal research, attendance at special or committee meet- ings, preparation for regular meetings, litigation, major project review, and legal opinions. General counsel shall submit bills for such compensation monthly, and shall pro- vide such breakdown of such compensation among the func- tions of the Board as the General Manager shall require. 4. This resolution shall take effect immediately. PASSED AND ADOPTED by the Board of Directors of the Truckee Donner Public Utility District at a meeting held within said District on the day o 1981, by the following roll call vote: AYES: NOES: G , ASSENT: s+r ABSTAIN: TRUCKEE DONNER PUBLIC UTILITY DISTRICT By `�( . Y• t&_ Roberta C. Huber, President ATTEST: Susan M. Craig, Deputy Dijr6rict Clerk KELLEY R.CARROLOt KENNETH P.CRAsa• PETER H.CvrnrrA• Law Office Of JABLYN R.RosEET80N sTEVEN C.ORoss� STEPHEN C.LMBRMAN PORTER • SIMON JOHNA.WHITS,OFCOUAWL Ames L.PORTER JR.• JAN ES E.SUM Professional Corporation Wso Lieeand in Nevada tCerdOid SpeclaNat in Estate Reply to Tnxkee O lee Plann1% TWO sad Probete Law June 1,2005 Peter Holzmeisteir Truckee Donner Public Utility District P.O.Box 309 Truckee,CA 96160 Re: Porter Simon Fee Increase Dear Peter. I am writing to inform you that as of July 1,2005,my hourly billing rate will increase to $180.00,inclusive of most costs. It has been several years since we increased our billing rates, and our cost of labor,health and worker's compensation insurance,rent and the overall cost of doing business has increased dramatically. I appreciate your confidence in our firm and trust this change in my billing rate is acceptable. Thank you. Very truly yours, PORTER•SIMON Professional Corporation STEVEN C.GROSS gross@portersdnton.com SCG/TL TRucKEE OFFICE 40200 Truckee Airport Rd,Suite 1•Truckee,California 96161 - (530)587-2002-Fax(530)587-1316 RENOOPFICE• Twentieth Century Building •335 W.First Sum. Reno,Nevada 99503 -(775)322.6767 Sounf LAKE TAHOE OFFICE •589 Tahoe Keys Blvd.,Suite E-8• South Lake Tahoe,California 96150.(530)5414392-Fax(530)541 7498 www.portersimen.com KELLEY R.CARROLL*t • M.STEVEN WAND* PETER H.curriTTA* Law Office Of ANDREw J.Moms* STEVEN C.GROSS* JAMES L.OLMSTEDtt STEPHENC.LIEBERMAN PORTER * SIMON KENNETH P.CRAia* JAMES L.PORTER JR.* JAMES E.SIMON Professional Corporation *Also Licensed in Nevada tCerlit3ed Specialist in Estate Reply to Truckee Office Planning, Trusts and Probate Law t tAlso Licensed in Navada,Oregon December 22. 2001 and Washington Truckee Donner Public Utilities District Attn. Peter Holzmeister P.O. Box 308 Truckee, CA 96160 Re: Attorneys Fees Dear Peter: Due to increased costs in the business of providing legal.services, we find that we must raise our fees. This is the first fee adjustment in six years. Effective January 1, 2002, my new hourly rate will be$150.00 for all matters, including attendance at meetings. As before, costs of photocopying (except large projects sent out to a copy service), facsimile both sent and received, postage (except express or overnight delivery), miscellaneous office supplies and telephone costs will be included in the new rate. Out-of-pocket costs will still be passed through to you. These types of costs may include court filing fees, investigative costs, messenger and delivery costs, travel expenses, including mileage and computer generated research. We continue to value your confidence in our firm and thank you for the opportunity to represent you. Please feel free to call me directly if you have any questions. Very truly yours, PORTER' SIMON Professional Corporation �TEVEN C. GROSS gross@portersitiion.com SCG:KS TRUCKEE OFFICE •40200 Truckee Airport Rd Truckee,California 96161 • (530)587-2002 Fax(530)587-1316 RENO OFFICE • Twentieth Century Building• 335 W.First Street- Reno,Nevada 89503 -(775)322-6767 SOUTH LAKE TAHOE OFFICE •2269 James Avenue•South Lake Tahoe.California 96150•(530)$41-8392 www.porterslmon.com LAW OFFICE OF PORTER SIMON PROFESSIONAL OORPORAMON JAMEB L MUM JR' 4OW TRUOKEE AIRPORT ROAD JAAEN L PORTER JR JAMM ERNESTB U10N TRUCKEE,CAUFORINIA 96161 PETER R OU'1TPPPA JOHN M.PHRLPS (916)587.2m ----- PETRR II.CDTP1TrA' FAX(016)687.1315 STEVEN O GUMS MVEN Q OR08S' VIROIMA JO DUNLAP -- - - ICICUNY ILCARROLL VIROUGA JD DUNLAP' 'Also Lleeaaed is Nevada NEVADA OFFUM 886 WRBT MISTSTRERT KENO,NRVADA RM (708)888.m January 7, 1994 Board of Directors Truckee Donner Public Utility District Dear Directors: Our firm would like to propose an increase in the standard hourly rate that we charge the District for our legal services. Our firm has handled the District's legal matters for over 13 years. During that entire period, we have tried to keep our fees as low as reasonably possible, Our first and only fee increase occurred in January of 1989, eight years after we began representing the District. It has now been five years since that initial fee increase, and we believe an additional adjustment is appropriate at this time. We have always kept our hourly rate to the District substantially below what we charge our private clients. Attached is a summary of our hourly rate to the District, as compared to our hourly rate to our private clients. As you can see, our hourly rate to our private clients has climbed considerably over the last 13 years, while the District's rate has stayed consistently low. Hourly PUD Rate Hourly Private Client Rate January 1, 1981 $75.00 $80.00 January 1, 1982 $75.00 $90.00 July-1, 1984 $75.00 $100.00 July 1, 1986 $75.00 $115.00 July 1, 1988 $75.00 $130.00 January 1, 1989 $115.00 $150.00 July 1, 1991 $115.00 $165.00 Nearly three years ago we began charging our other public agency clients at a rate of $125.00 per hour. The rate that we charged the District, however, remained at $115.00 per hour. We spend a good deal of time attending District Board meetings. While we enjoy attending District Board meetings, and we believe our attendance is helpful, the meetings are sometimes lengthy, and our involvement is sometimes minimal. For that reason, it occurred to us that it might be appropriate to charge a lower hourly rate for our meeting attendance. We propose a two-tier rate, to take affect January 1, 1994. Our proposal is: 1.For attendance at Board meetings only, we would charge $125.00 per hour. 2.For all other public agency advice, research, documents drafting, negotiations, etc., we would charge $140.00 per hour. If the District would prefer to have only one rate, then we would certainly consider that. Occasionally, the District needs specialty work from other attorneys in our firm. For instance, the.District occasionally has needed Jim Porter to handle special real estate matters. Occasionally Jim Simon or Peter Cuttitta has lent a hand with litigation matters. When these other attorneys assisted the District, it was in their specialty areas, rather than in the area of public agency law. In the future, our rate for the specialty work would be the same rate we charge our other clients, which is currently $165.00 per hour. All work Steve Gross and I perform, however, would be charged at our public agency rate, as set forth above. During the past year, we have had several opportunities to work with the Districts special counsel from other firms, who charged considerably more per hour than we do. For instance, Rich Brown, of McDonough, Holland & Allen, charges the District a rate of $195.00 per hour. While all of the outside counsel we have worked with have been excellent and skilled attorneys, we have found that our skills and abilities were equal to theirs. For that reason, we believe that the rates we have charged the District, and that we propose to charge the District, are extremely fair. We would be more than happy to answer any questions you may have, or provide any further information. Very truly yours, PORTER SIMON Professional Corporation JOHN M. PHELPS JMP:cb cc: Peter Holzmeister 6666 West Quincy Avenue Denver,CO 80235-3098 American Water Works T 303.794.7711 Association www.awwa.org The Authoritative Resource on Site Water Advocacy Communications Conferences October 29,2007 Education and Training Science and Technology 49601 Sections Mr. Peter L. Holzmeister General Manager Truckee Donner Public Utility Department PO Box 309 Truckee, CA 96160-0309 Dear Peter, In celebration of Member Appreciation Week November 4-10, 2007, the American Water Works Association (AWWA) is sending your organization a well-earned thank you as you reach your 30—year membership anniversary. AWWA is acknowledging the commitment of all our members, and extending special recognition to orilanizations like yours who contribute so much to AWWA. Enclosed is a unique gift of gratitude for the support and dedication your organization has provided not only to the Association,but also to your communities and your profession. My hope is that you will proudly display this gift where co-workers and customers can see your contribution to the world of water. Thank you for your membership and for all that you do to improve the quality and supply of safe water. Sincerely, 44k- Jack W. Hoffbuhr,P.E.,DEE Executive Director Rate Increase Options Average kWh Use/month 761 KWh 2007 Zone 1 2008 Zone 1 Residential Residential 2007 2008 2008% 2009 2009% Water Water Total Total Increase Total Increase 9.94%in 2008 0.00°/4 in 2009 2007 2008 2009 Primary Residential Electricity$ $97.45 $107.14 $107.14 $52.13 $55.261 $149.58 $162.40 8.57% $162.40 0.00% $Monthly Increase $9.69 $0.00 $3.13 6.00%in 2008 4.00%in 2009 2007 2008 2009 Primary Residential Electricity$ $97.45 $103.30 $107.43 $52.13 $55.261 $149.58 $158.56 6.00% $162.69 2.61% $Monthly Increase $5.85 $4.13 $3.13 5.00%in 2008 5.00%in 2009 2007 2008 2009 Primary Residential Electricity$ $97.45 $102.32 $107.44 $52.13 $55.261 $149.58 $157.58 5.35% $162.70 3.25% $Monthly Increase $4.87 $5.12 $3.13 7.00%in 2008 3.00% in 2009 2007 2008 2009 Primary Residential Electricity$ $97.45 $104.27 $107.40 $52.13 $55.261 $149.58 $159.53 6.65% $162.66 1.96% $Monthly Increase $6.82 $3.13 $3.13 November 7, 2007 11/6/07 Hello and please distribute this to the members of the board as I will be unable to attend the upcoming board meeting. I am a huge supporter of simple, low cost conservation projects that can be immediately implemented. Many of these are expansions of programs already existing through the TDPUD. As such I basically support the proposals which will be made at the upcoming meeting by Mr. Mowris whose knowledge and practical points of view I respect. Mr. Hollabaugh had also stated that the committee should go after the "low hanging fruit" , the quick and easy conservation measures. All this makes a great deal of sense to me and I hope supported by the board. I look forward to being part of the implementation of some of these programs. Respectfully, Rolf Godon Ph.D.