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11-09-2005 SHERMAN & HOWARD LLC LETTER OF ENGAGEMENT FOR RICD ADJUDICATIONSherman & Howard L.L.C. GARY L. GREER Direct Dial No.: (303) 299-8322 E-mail: ggreer@sah.com Town of Avon Attn: Mr. Norman Wood Post Office Box 975 Avon, Colorado 81620 Re: RICD Adjudication Dear Mr. Wood: ATTORNEYS & COUNSELORS AT LAW 633 SEVENTEENTH STREET, SUITE 3000 DENVER, COLORADO 80202 TELEPHONE: 303 297-2900 FAX: 303 298.0940 OFFICES IN: COLORADO SPRINGS RENO • LAS VEGAS • PHOENIX November 9, 2005 The purpose of this letter is to confirm our engagement as water rights counsel to adjudicate a Recreational In-Channel Diversion water right (RICD) for the Town of Avon. In undertaking a new matter we believe it a good practice to confirm the scope of our representation and other terms of our engagement. We understand you have retained us to prepare and file an application to the Water Court for Water Division No. 5 for a water right for a whitewater park in the Town of Avon. In doing this we will work together with you and your consulting water engineers and design consultants. We will conduct negotiations with opposing parties and conduct litigation as needed to pursue the RICD application to a final judgment and decree in water court. We will also handle related RICD proceedings before the Colorado Water Conservation Board, and, if necessary and with your approval, any appeals from the final judgment and decree of the water court. Doran Matzke and I will be the lawyers at this firm who will coordinate and oversee the services we perform on your behalf. We may delegate some matters to other lawyers or legal assistants in our firm when they are in a better position to carry them out because of experience or other reasons. In order to minimize the fees incurred by The Town, we will try to delegate tasks to those who can properly do the task at the least cost to you. With respect to financial arrangements, the legal fees we will charge for our services for this work will be determined by reference only to the amount of time we devote to this matter, using our minimum hourly rates for this type of work. We will not use other factors to adjust our fees. The hourly rates which our firm establishes for all lawyers and legal assistants are set according to their levels of experience. You should also know that the scale itself is adjusted occasionally. Presently, my billing rate for this type of work is $225.00, Ms. Matzke's rate is also $225.00 for this type of work. Our fees will be billed monthly. Sherman & Howard L.L.C. Town of Avon November 9, 2005 Page 2 In addition, you will incur fees of engineering consultants and other experts in the course of the adjudication of the RICD. These fees will be billed to you directly by them. While representing you in this litigation we intend to assert your position vigorously and efficiently. However, we want you to understand that in representing any client in a contested adversarial matter, we cannot promise or guarantee the ultimate success of the client's position in the lawsuit. Our performance also depends, in large part, upon your cooperation, and particularly upon prompt receipt of information and instructions from you from time to time as the matter progresses. If anything I have stated in this letter or the enclosed memorandum, presents a problem, or is unclear, will you advise me promptly, so that we may discuss it and reach a full understanding? Otherwise, please execute the enclosed copy of this engagement agreement and return it to me. Yours very truly, Gary L. Greer GLG/dmc Enclosure Acypted a~ greeA to this -6 -d of a-m , 2 By: C Name: u lc0cf C . Title: c< ' Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer 41 Date: November 16, 2005 Re: Sherman & Howard L.L.C. - Letter of Engagement for RICD Adjudication Summary: Gary L. Greer with Sherman & Howard L.L.C. submitted the attached letter of engagement (Exhibit 1) to confirm their engagement as water rights counsel to adjudicate a Recreational In-Channel Diversion water right (RICD) for the Town of Avon. The RICD Application is proposed in conjunction with the Eagle River Recreational Enhancements Project. The letter of engagement outlines the general services to be provided, the personnel providing the service and the billing rate for these services. The letter of engagement is accompanied by a schedule of activities and estimated fees through December 31, 2005 (Exhibit 2), that includes filing of the RICD Application with the Water Court for Water Division No. 5. The projected Fees through December 31, 2005 are $25,650. These fees have been included in the proposed budget amendment addressed by Resolution No. 05-55. Approval of this Letter of Engagement formalizes action and direction previously taken by Council. We recommend approval of the Letter of Engagement from Sherman and Howard L.L.C. dated November 9, 2005, confirming their engagement as water rights counsel to adjudicate a Recreation In-Channel Diversion water right (RICD) for the Town of Avon. Financial Implications: The 2005 estimated cost of these services is ($25,650) and is included in the proposed budget amendment addressed by Resolution No. 05-55. Recommendation: Approve Letter of engagement from Sherman & Howard L.L.C. dated November 9, 2005, confirming their engagement as water rights counsel to adjudicate a Recreational In-Channel Diversion water right (RICD) for the Town of Avon. 1AEnginee6ng\CIP\RICD\22.O Contract Services\Legal Engagement Ltr Menio.Doc 1 Proposed Motion: I move to approve Letter of engagement from Sherman & Howard L.L.C. dated November 9, 2005, confirming their engagement as water rights counsel to adjudicate a Recreational In-Channel Diversion water right (RICD) for the Town of Avon. Town Manager Comments: cK 0 Page 2 T I ATTORNEYS & COUNSELORS AT LAW 633 SEVENTEENTH STREET, SUITE 3000 Sherman & Howard I..L.C. DENVER, COLORADO 80202 TELEPHONE: 303 297-2900 PAR: 303 2980940 OFFICES IN: COLORADO SPRINGS RENO • LAS VEGAS - PHOENIX GARY L. GREER Direct Dial No.: (303) 299-8322 E-mail: ggreer@sah.com Town of Avon Attn: Mr. Norman Wood Post Office Box 975 Avon, Colorado 81620 Re: RICD Adjudication Dear Mr. Wood: November 9, 2005 The purpose of this letter is to confirm our engagement as water rights counsel to adjudicate a Recreational In-Channel Diversion water right (RICD) for the Town of Avon. In undertaking a new matter we believe it a good practice to confirm the scope of our representation and other terms of our engagement. We understand you have retained us to prepare and file an application to the Water Court for Water Division No. 5 for a water right for a whitewater park in the Town of Avon. In doing this we will work together with you and your consulting water engineers and design consultants. We will conduct negotiations with opposing parties and conduct litigation as needed to pursue the RICD application to a final judgment and decree in water court. We will also handle related RICD proceedings before the Colorado Water Conservation Board, and, if necessary and with your approval, any appeals from the final judgment and decree of the water court. Doran Matzke and I will be the lawyers at this firm who will coordinate and oversee the services we perform on your behalf. We may delegate some matters to other lawyers or,.legal assistants in our firm when they are in a better position to carry them out because of experience or other reasons. In order to minimize the fees incurred by The Town, we will try to delegate tasks to those who can properly do the task at the least cost to you. With respect to financial arrangements, the legal fees we will charge for our services for this work will be determined by reference only to the amount of time we devote to this matter, using our minimum hourly rates for this type of work. We will not use other factors to adjust our fees. The hourly rates which our firm establishes for all lawyers and legal assistants are set according to their levels of experience. You should also know that the scale itself is adjusted occasionally. Presently, my billing rate for this type of work is $225.00, Ms. Matzke's rate is also $225.00 for this type of work. Our fees will be billed monthly. Sherman & Howard L.L.C. Town of Avon November 9, 2005 Page 2 In addition, you will incur fees of engineering consultants and other experts in the course of the adjudication of the RICD. These fees will be billed to you directly by them. While representing you in this litigation we intend to assert your position vigorously and efficiently. However, we want you to understand that in representing any client in a contested adversarial matter, we cannot promise or guarantee the ultimate success of the client's position in the lawsuit. Our performance also depends, in large part, upon your cooperation, and particularly upon prompt receipt of information and instructions from you from time to time as the matter progresses. If anything I have stated in this letter or the enclosed memorandum, presents a problem, or is unclear, will you advise me promptly, so that we may discuss it and reach a full understanding? Otherwise, please execute the enclosed copy of this engagement agreement and return it to me. Yours very truly, Gary L. Greer GLG/dmc Enclosure Accepted and Agreed to this day of , 2005 By:_ Name: Title: AVON RICD FEE ESTIMATE THROUGH DEC 31, 2005 i CASE ASSESSMENT, DEVELOPMENT AND ADMINISTRATION Hours Cost Hourly Rate Time from 10119 through 11/10 31 6975 225 Fact investigation/development 8 1800 225 Analysis and Strategy 25 5625 225 Time Spent with Experts/consultants 15 3375 225 Consultations with CWCB Staff, Others 12 2700 225 Other: Meeting with Council etc. 8 1800 225 Sub Total Case Assessment, Development and Administration 99 22275 225 PRE-TRIAL PLEADINGS AND MOTIONS 225 Draft and File Application to Court for Decree 15 3375 225 Court Conferences 0 225 Dispositive Motions 0 225 Other Motions 0 225 Sub Total Pre-Trial Pleadings and motions 15 3375 225 12-31-05 DISCOVERY Written 0 225 Document Production 0 225 Depositions 0 225 Prepare and take 0 225 Prepare and defend 0 225 Attend 0 225 Miscellaneous work: setting and noticing depositions 0 225 Expert Discovery 0 225 Prepare and defend our experts (2) 0 225 Prepare and take Opposer's experts (4) 0 225 Attend depositions of others 0 225 Discovery Motions 0 225 Other discovery 0 225 Sub Total Discovery 0 225 CWCB PROCEDURE Written Presentation 0 225 Hearing Preparation 0 225 Hearing 0 225 Sub Total CWCB 0 0 225 TRIAL PREPARATION AND TRIAL 225 Fact witnesses 0 225 Expert witnesses 0 225 Written motions 0 225 Other trial preparation 0 225 TRIAL AND HEARING ATTENDANCE 0 225 Trial time 5 days 0 225 Sub Total Trial Preparation and Trial 0 0 225 0 225 TOTAL FEES 25650