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HomeMy WebLinkAboutContracts & Agreements_187-2009_CCv0001.pdf UU1 1 1 f I Edward L. Strohbehn Jr. ttz � Direct Phone: 415.393.2059 Direct Fax: 415.262.9246 edward.strohbehn.t bingham.com Y1TWED December 1, 2009 r�,f Daniel J. McHugh: �f0 City Attorney . City of Redlands 35 Cajon Street, Suite 200 Redlands, CA 92373 Re: Engagement for Services -- Gussing Project Dear Dan: We are pleased to represent the City of Redlands ("City") in providing advice and assistance to, and representation of the City regarding the City's involvement in the proposed project to design, construct, and operate a biomass power plant on City-owned property using municipal waste from the City's landfill ("Project"). This letter summarizes our understanding of the work we are to perform and confirms the terms and conditions of our engagement. Project Scope We understand that the City is engaging Bingham McCutchen LLP ("Bingham ) to represent the City in connection with the City's involvement in the Project as generally described above and as more specifically described below. As proposed by Mr. Krantz and Biomassekraftwerk Gussing GmbH, but subject to change as a result of negotiation by the City, the City's principal 6�zni responsibilities for and interests in the Project include, but are not limited to, the Hartford following: Hong Kong `ons°" • Enter into a binding long term lease to Redlands Biomass, LP Los Angeles New York ("RBLP") and/or North American Biomass Company ("NABC") Orange County (together the "Company") of approximately four to five acres of San Francisco City-owned land, located within the unincorporated area of the Santa Monica County and adjacent to the City's municipal landfill, for the site of Silicon Malley Tokyo the biomass power plant. The City would be paid a monthly cash Walnut Creek f rent, which would be negotiated. Washington f * Obtain a 9% partnership or other financial interest in the Company in return for entering into the long term lease of the City property Bin h nn MFC lcher 1_0 on which the power plant would be located. This interest may be Three EmDarf adrri Cpnlersubject to the full return of the investment of the limited partners an'fancisc ,CA 94111-4,36-, 4i5,393:200G Daniel J. McHugh December 1, 2009 Page 2 and would be diluted by any equity financing required to finance the Project. • Cooperate in the filing and processing of land-use entitlements for all government agency permits and approvals necessary to construct and operate the Project. The Company will be the applicant for such entitlements. • Perform other tasks that are necessary to achieve construction and operation of the Project. It is proposed that the following entities would be involved in the Project and that Z:1 the following structure would be used to implement the Project, which entities and structure are relevant to determining issues that Bingham would address for the City. RBLP proposes to design and construct the biomass power plant using technology implemented by Biomassekraftwerk Gussing GmbH. The General Partner of RBLP would be NABC which is owned by Dr, Tim Krantz (56%), a professor at the University of Redlands, Gussing Renewable Energy America, LLC ("Gussing") (41%). and Mr. Michael Dichand (3%). The initial funding of RBLP would defray the initial costs of scoping, planning, obtaining initial design criteria, and negotiating contractual arrangements with the City, Gussing, and other parties, who might include Southern California Gas Company (local power provider), GE Energy (turbine provider), Corix (power plant manager), and the financing parties. The following investment interests in the Company have been proposed: • General Partner (NABC) -- 19% • Gussing -- 27% • City -- 9% • Southern California Gas Co, Corix, GE Energy, and private investors -- collectively 45% The financing proposal provides that all interests purchased for cash would be subject to full return of the investment of the limited partners and would be diluted by any equity financing required to finance the Project. The General Partner will direct day-to-day operations. Binghann McCutchen LLP bingham,com Daniel J. McHugh Z-- December 1. 2009 Page 3 Scope of Representation Our representation, as set forth in this letter. is of the City, and we are not undertaking to represent any individual officer, director, shareholder, or employee of the City. The City will be our only client on the matters set forth in this letter. Please note that we have not been engaged to act as counsel for, or to assume any duties to, any other parties who may be affiliated with or related to the City, such as other agencies or entities. We are, of course, happy to discuss providing the City additional legal services as the City may request from time to time. If we agree to do so, we will provide you with further written confirmation of the scope of any such additional services. Fees; Staffing Fees for our services are generally determined by the amount of time devoted by our attorneys and other professionals multiplied by their hourly rates. Our hourly rates are based on years of experience and level of professional knowledge. Our hourly rates are generally adjusted upwards at the beginning of each calendar year but may be adjusted at other times. If our hourly rates change, then services provided after the date of the change will be charged at the rates in effect at the time the services are performed. We will determine the staffing of the matter, including the selection of attorneys and legal assistants to perform specific tasks as we believe appropriate. Attorneys who will staff the matter are listed in Exhibit A. If an attorney other than those listed in Exhibit A is asked to perform a significant amount of work on the matter, we will provide the name of the individual attorney and information about the attorney to the City for its approval, although the individual attorney can begin to work on the matter pending approval by the City. Fee Discount Policy The discount being proposed represents a significant concession against our standard rates. We are willing to do this because we value our relationship with you, and we understand the pressures you are facing in the current economic environment. At the same time, we ourselves are facing similar pressures, and so, as we are such you can appreciate, our willingness and ability to provide this level of discount has to be conditioned on certain understandings. Most importantly, we will expect that our invoices will be paid in a timely manner and in full, Specifically, we ask that all invoices be paid within 30 days of receipt. As a matter of practice, I carefully review all invoices before they go out in order to insure that I am comfortable with the efficiency of our work. However, if upon receipt you have questions about any of our charges, you are of Bingham McCutchen LLP b�aehari,com Daniel J. McHugh December 1, 2009 Page 4 course welcome to raise them with me. Absent such questions, I and the firm will assume and expect that our invoices will be paid in full. We reserve the right to discontinue the agreed-upon discount if these understandings are not met. Disbursements Our statements for services will include, in addition to our time charges, our charges for out of pocket expenses incurred on the City's behalf. Such expenses ordinarily include our customary charges for copying, document printing, outgoing fax services, telephone calls, postage, messenger services, secretarial overtime for rush projects, videoconferencing, computerized legal research services, travel expenses, filing fees, notary fees, and all other costs and expenses paid or incurred by us on the City's behalf. A copy of our current "Client Billing and Payment Guidelines, which includes current charges for such disbursements, is attached as Exhibit B. Our policy is to have disbursement amounts in excess of $1,000 paid directly by the client. Statements for Services We customarily bill on a monthly basis, and payments are due within thirty days of receipt of our billing invoice. Our obligation to provide continuing representation is conditioned upon timely payment of our invoices, subject to the applicable rules of professional conduct. No Guarantee of Results No results in this matter have been guaranteed to the City by us, and this agreement is not based on any promised or anticipated results. Advance Conflict Waiver We wish to point out that, as a large law firm with a diversified legal practice, we are often called upon to represent clients in many fields and with different interests. We agree that we will not represent any other client or prospective client in matters which are related to, and adverse to, those for which we have been engaged by the City without your consent. At the same time, by accepting this letter, you consent to our representation now and in the future of any client on matters unrelated to our engagement for the City as set forth in this letter even if that representation is adverse to the City and whether or not litigation adverse to the City is contemplated. Bingham NkCutchen LLP bingham,com Daniel J. McHugh December 1, 2009 Page 5 Termination We look forward to a productive and enduring relationship. It is understood, however, that either the City or we may terminate our representation at any time, with or without cause, at which time all fees and expenses associated with our representation will be immediately due and payable. Arbitration We do not anticipate having any disagreement with the City about the quality, cost or appropriateness of our services, but if any concerns about these matters arise, please notify us immediately. We will endeavor to resolve any disagreement in a fair and amicable manner. If it is not possible to resolve the disagreement ourselves, then each of us agrees to resolve any dispute or claims between us, including any relating to our fees or the quality or appropriateness of our services, by binding and confidential arbitration under the auspices and applicable rules of JAMS or the American Arbitration Association (AAA), whichever the City prefers, in Los Angeles, California. Such arbitration will be conducted by a single arbitrator, to be selected by mutual agreement or in accordance with the applicable rules. Each of us understands that, by agreeing to arbitrate any disputes between us, we are giving up rights, including our rights to a trial by jury, to the broader discovery permitted in court proceedings, and to appeal. It is understood and agreed, however, that this agreement to arbitrate is subject to and without waiver of the City's right to elect to resolve any fee dispute in accordance with the fee arbitration procedures of the State Bar of California. In the event any such State Bar fee arbitration does not resolve the matter, we both agree to submit the dispute for final resolution by private arbitration before JAMS or AAA as set forth above. Client Files At the completion of this matter, the City may elect to take possession of the matter file. If you do not elect to take possession of the matter file at that time, we will close the file and retain it on premises or in off-site storage for a period of not longer than ten years. At the end of that period, the matter file will be destroyed, unless we have been otherwise instructed to deliver the file to you. Governing Law The City and we agree that California law governs the performance of this agreement and our engagement, except that the Federal Arbitration Act will govern the arbitration provisions of this agreement. Daniel J. McHugh December 1, 2009 Page 6 Conclusion If the matters set forth in this letter are acceptable to you, please sign and date this letter where indicated below and return the original to me. Thank you for the opportunity and privilege you have given us to represent the City and provide it with advice and assistance for its involvement in this interesting and challenging Project. S* cerely, Edwa L.'Strohbehn THE TERMS OF REPRESENTATION SET FORTH ABOVE ARE HEREBY ACCEPTED. City of Redlands ATTEST: By: mayor Dated: December 1, 2009 City Clerk Attachments: Exhibit A (Bingham Staffing) Exhibit B (Bingham Client Billing and Payment Guidelines) December 1, 2009 Exhibit A Cite of Redlands Gussing Gassifier Project Bingham Staffing Coordinating/Managing Partner I-I'dward L. Strolibehn .1r. Environmental/Regulatory Ed-vNTard L. Strohbehn Jr. Partner Michael S. McDonough(SCAQMD) Partner Elizabeth Rumsey Associate Energy Interconnection and Transactional William B. Kissinger Partner Berj K. Parseghian Counsel Cl-.'QA/I,,and Use Ella Foley Gannon Partner Verne Ball Associate Real Estate Carol K. Dillon Partner Maryam Norton Associate (,'orporate/13ntrepreiieuriaI Harlan Wendell Partner Senior Resources/Specialists Stephen L Kostka (CEQA/Land Use) Partner Rick Rothman (Environmental,'Air) Partner Mark C. Williams (Energy/FERC) Partner Exhibit B December \, 7009 B|NGHA0AK0CCUTCNENLLP CLIENT BILLING AND PAYMENT GUIDELINES Bingham McCutchen'o billing and payment guidelines are outlined below, Our goal is to provide clients with accurate and timely account information and to answer any billing and payment questions that occur during the engagement. For questions orfurther information, please contact ueat{6LZ}951-8787. Information:Billinci Cl Invoices will be mailed monthly, unless both parties have agreed to an alternative billing cycle. 0 The standard billing format includes: ° Date • Timekeeper ° Narrative description nfwork performed ° Total hours worked bydate ° Summary nfhours worked bytimekeeper 0 Please advise Bingham K4oCutchen of any billing guidelines for outside counsel and/or requests to modify the standard billing format during the first 30days ofthe engagement. [] Per a client's special request,we will send the invoices initially to a third party(i.e. insurance company), |nsuch cases,the client io requested to advise the billing attorney or the Accounting Dept. Please note: Clients remain responsible for full payment o/ services if the third party does not pay the invoice in full or in a timely manner. Disbursements Costs incurred i 0e U b Bi h �cCuichen LLP amoha d hnU Information:Couriers, delivery service and express mail at actual cost. Postage for large volume mailings,at actual cost. Facsimile transmissions at$1.50 per page for outgoing and no charge for incoming. Copies at 200 per page-includes photocopies, laser printing, and document production center. Color copies at 35� per page. Scanning at 150 per page. Telecommunications at cost(direct and indirect). Automated research services such as Westlaw and Lexis at undiscounted vendor rates. Secretarial overtime for rush projects, at$70 for regular time and$80 for double time. ($80/$90 in NY) Video conferencing, at$1 00/hour/site—domestic-, and$150/hour/site- international. Airline reservations,at cost including travel agent fees. All other charges,at actual cost. Significant costs(items exceeding$1,000)incurred on behalf of clients by outside vendors will be invoiced directly to the client by the outside vendor, when feasible, orfonvarded to the client by Bingham,for directpayment. Exceptions are costs over$1,000 but less than$2,500 incurred by the Litigation Area for outside copy work, depositions or transcripts. As indicated above, certain disbursements are passed through to clients at cost. At times, Bingham McCutchen receives rebates, charge-backs, and bulk discounts which cannot be readily attributed to particular matters and are not offset against individual disbursement charges. Payment [l Payments are due of an invoice unless other arrangements have been made with Bingham McCutchen. Bingham McCutchen accepts checks and EFTs; including wire transfers,ACH, and Swift payments. O Remittance for check payments: Bingham yWcCutchenLLP P.0. Box 34O8 Boston, MAD2241-348O LI |fapplicable. our wire transfer and ACHinstructions are aafollows: Bank ofAmerica ' 1UOFederal Street Boston, MAQ211O Account Name: Bingham k8cCutuhenLLP ABA Routing No.: n118-OU13'8 (ACHTransactions) ABA Routing No.: O2G0'UO50'3(Domestic wires) 8vNM Number: BOFAUS3M (International wires) Account Number: 00403-17005