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01-14-2014 Revised Agreement for Legal Services Moses, WittemyerMOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES January 9, 2014 Town of Avon c/o Virginia Egger, Town Manager P. O. Box 975 Avon, CO 81620 Re: Revised Agreement for Legal Services, Town of Avon Dear Virginia: BY EMAIL The purpose of this letter is to outline the terms on which the Town of Avon agrees to continue retention of the Moses, Wittemyer, Harrison and Woodruff, P.C. law firm to provide water - related legal services and the terms on which the firm agrees to provide those services. The scope of the engagement is to provide legal services on an as- needed basis as water counsel to the Town. We understand that the work would involve assisting you as Town Manager and advising you and the Town Council on transactional matters that are water- related, such as dealings with the Upper Eagle Regional Water Authority and other members of the Authority, contracts and negotiations with developers, acquisition of water rights, and related matters. Specifically, we understand that this work will include negotiations with the Upper Eagle Regional Water Authority regarding the Town's service agreement. In addition, we would represent the Town as needed in Water Court cases. We understand that the work will not likely involve substantial Water Court activity because the primary Water Court work associated with the Town's water rights is carried out by the Upper Eagle Regional Water Authority. As discussed in our previous engagement letter dated September 19, 2013, we are not aware of any direct conflicts and have made you and the Town aware of work that we have done for other clients that could be considered by the Town to present the potential of a conflict. Our firm represented Union Oil Company of California (Unocal) for many years in connection with its oil shale properties and water rights in Parachute Creek, the Roaring Fork River and the Colorado River near Parachute, Colorado. Unocal has since sold all of its water rights and properties and we continue to do some water rights work for its successor Encana Oil & Gas (USA) Inc. ( Encana). Unocal was a party to some cases in the Eagle River basin years ago, but Encana is not active in that area. Our firm continues to advise Encana with respect to very large Water Court applications that might affect Encana's water rights in the Colorado River basin, but we would not expect that to present a conflict of interest with the scope of work outlined herein. 00069581 -5 1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913 -2011) RICHARD J. MEHREN CHARLES N. WOODRUFF CAROLYN R. STEFFL -TELEPHONE: (303) 443 -8782 (1941 -1996) FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL ANNE D. BENSARD JOHN WITTEMYER JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY BOULDER, COLORADO 80306 -1440 January 9, 2014 Town of Avon c/o Virginia Egger, Town Manager P. O. Box 975 Avon, CO 81620 Re: Revised Agreement for Legal Services, Town of Avon Dear Virginia: BY EMAIL The purpose of this letter is to outline the terms on which the Town of Avon agrees to continue retention of the Moses, Wittemyer, Harrison and Woodruff, P.C. law firm to provide water - related legal services and the terms on which the firm agrees to provide those services. The scope of the engagement is to provide legal services on an as- needed basis as water counsel to the Town. We understand that the work would involve assisting you as Town Manager and advising you and the Town Council on transactional matters that are water- related, such as dealings with the Upper Eagle Regional Water Authority and other members of the Authority, contracts and negotiations with developers, acquisition of water rights, and related matters. Specifically, we understand that this work will include negotiations with the Upper Eagle Regional Water Authority regarding the Town's service agreement. In addition, we would represent the Town as needed in Water Court cases. We understand that the work will not likely involve substantial Water Court activity because the primary Water Court work associated with the Town's water rights is carried out by the Upper Eagle Regional Water Authority. As discussed in our previous engagement letter dated September 19, 2013, we are not aware of any direct conflicts and have made you and the Town aware of work that we have done for other clients that could be considered by the Town to present the potential of a conflict. Our firm represented Union Oil Company of California (Unocal) for many years in connection with its oil shale properties and water rights in Parachute Creek, the Roaring Fork River and the Colorado River near Parachute, Colorado. Unocal has since sold all of its water rights and properties and we continue to do some water rights work for its successor Encana Oil & Gas (USA) Inc. ( Encana). Unocal was a party to some cases in the Eagle River basin years ago, but Encana is not active in that area. Our firm continues to advise Encana with respect to very large Water Court applications that might affect Encana's water rights in the Colorado River basin, but we would not expect that to present a conflict of interest with the scope of work outlined herein. 00069581 -5 MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. Town of Avon January 9, 2014 Page 2 We have provided a courtesy notice to Encana of our past representation of the Town and have been informed that Encana does not perceive any potential conflict in that relationship. One of the firm's partners, Tim Beaton, once represented the Upper Eagle Regional Water Authority in connection with a dispute with the Town of Avon. At the time he was a partner with the firm of Collins & Cockrel and assisted Jim Collins on an issue concerning the breadth of the Upper Eagle Regional Water Authority's formation documents as they related to the Town of Avon. Tim has no recollection of the details of that work and left all of the files related to that work with the Collins & Cockrel firm when he re joined Moses Wittemyer. Again, we do not perceive that prior work to present a conflict but, in the interest of full disclosure, wanted you and the Town to be aware of it. Sometimes conflicts arise that were not foreseen when we undertook the new representation. In that event, our firm's policy is to cease representing the newer client and to continue representing the older client to the extent that ethical considerations permit us to do so. Sometimes, based on ethical considerations, it may be necessary for our firm to cease representing both the newer and the older client in a particular matter if a conflict of interest arises. As we have discussed with Town Attorney Eric Heil, Jay Montgomery, who is of- counsel to the firm and previously represented the Town, will be primarily responsible for matters involving changes to, or re- negotiation of, the various agreements with the Upper Eagle Authority and matters related to the Traer Creek settlement, such as the water rights for Nottingham Reservoir which we discussed with Eric by phone recently. The responsible attorney for the Town's other water matters including, but not limited to, review of water court filings, if any, and assisting the Town with other water rights and use matters will be reviewed and determined in consultation with the Town on a case -by -case basis. If, after consultation, with you and/or the Town Attorney, we determine that all or part of a particular matter will be most efficiently handled by Jay, his time will be billed to the Town at his current hourly billing rate. Jay will be available at least through December 31, 2014 to assist with the Town's water matters. Where appropriate and after consultation with Town and Town's consent, we will delegate work to associate attorneys, paralegals and law clerks in order to keep the costs as low as reasonably possible. Time spent by others at the firm on the Town's water matter will be billed only to the extent their work on the matter is in addition to, and not duplicative of, any work performed by Jay. Please be advised that the Town will be required to file an application to continue or to make absolute all or part of the Town's previously decreed recreational in- channel diversion water right. That application must be filed with the water court on or before the end of June, 2014 or the water right will be cancelled by the court. 00069581 -5 Town of Avon January 9, 2014 Page 3 Our hourly rates are listed on the fee schedule attached. We typically review and adjust the hourly billing rates on an annual basis, and we will advise the Town in writing of any changes in our billing rates before undertaking any work at rates different from those described herein. Our monthly bills will indicate the hourly charges by attorney or other staff member, as well as any additional fees or out -of- pocket expenses incurred in connection with your legal services. Mileage is presently billed at 56.5¢ per mile, photocopies are billed at 10¢ per page and faxes are billed at 25¢ per page. Payment is due within 30 days and it is our firm's policy to charge interest at a rate of I %o per month on any principal balance that is not paid within 30 days. We will use our best efforts in representing the Town in connection with its water matters, but make no promises or guarantees regarding the outcome of the subject matter for which we are retained. Our comments regarding the probable outcome of any matter are mere expressions of opinion. We also cannot guarantee that any case or controversy involving court action or administrative proceedings will be resolved within a specific time frame because the time table for resolving such matters by a court or agency is often beyond our control. The Town, in turn, agrees to provide us on a timely basis with all data, documents or other information in its possession relating to the matters within the scope of our representation so that we can be fully- informed. The Town has the right to terminate the engagement of our firm at any time. We reserve the right to do the same within ethical constraints and so long as we give the Town adequate notice of such termination. If the policies, terms and conditions of this proposal for Legal services are acceptable, please sign and return a copy of this letter to me, while retaining a copy for the Town's records. We look forward to the continued opportunity to work with you and the Town Council. If you have any questions or need additional information, please call. Sincerely yours, MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. Richard J. M ,6hren James R. Montgomery 00 "59581 -5 MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. Town of Avon January 9, 2014 Page 4 The foregoing is accepted as the terms of engagement of Moses, Wittemyer, Harrison and Woodruff, P.C. to represent the Town of Avon regarding the specific matters described herein. Dated: J4"Lw 14/' a O TOWN OF AVON By: Mayor Rich Carroll PMD: cn Enclosures 00069581 -5 MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES This is to advise that effective January 1, 2014 our hourly rates for professional services rendered will be as follows: David L. Harrison $275.00 per hour James R. Montgomery $270.00 per hour Timothy J. Beaton $260.00 per hour Richard J. Mehren $235.00 per hour Carolyn R. Steffl $210.00 per hour Jennifer M. DiLalla $195.00 per hour Alison D. Gorsevski $165.00 per hour Anne D. Bensard $165.00 per hour Paralegal $ 90.00 per hour Senior Law Clerks $ 85.00 per hour Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing. The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in addition to hourly rates, for work involving special risks, effort or time constraints including, without limitation, opinions relating to title, bonds and similar matters. 00058374 -3 1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913 -2011) RICHARD J. MEHREN CHARLES N. WOODRUFF CAROLYN R. STEFFL TELEPHONE: (303) 443 -8782 (1941 -1996) FAX: (303) 443 -8796 INTERNET: www.inwhw.com COUNSEL ANNE D. BENSARD JOHN WITTEMYER JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY BOULDER, COLORADO 80306 -1440 This is to advise that effective January 1, 2014 our hourly rates for professional services rendered will be as follows: David L. Harrison $275.00 per hour James R. Montgomery $270.00 per hour Timothy J. Beaton $260.00 per hour Richard J. Mehren $235.00 per hour Carolyn R. Steffl $210.00 per hour Jennifer M. DiLalla $195.00 per hour Alison D. Gorsevski $165.00 per hour Anne D. Bensard $165.00 per hour Paralegal $ 90.00 per hour Senior Law Clerks $ 85.00 per hour Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing. The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in addition to hourly rates, for work involving special risks, effort or time constraints including, without limitation, opinions relating to title, bonds and similar matters. 00058374 -3