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petition

petition

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Published by Greg aymond

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Published by: Greg aymond on Aug 18, 2010
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03/24/2014

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ENERGY MANAGEMENT SERVICES, LLC
DOCKET NO.________________
VERSUS
NINTH JUDICIAL DISTRICT COURT
THE CITY OF ALEXANDRIA, LOUISIANA
PARISH OF RAPIDES, LOUISIANA
*****************************************************************************
*
PETITION FOR BREACH OF CONTRACT, DAMAGES,
REQUEST FOR ACCOUNTING AND WRIT OF SEQUESTRATION

NOW INTO COURT, through undersigned counsel, comes ENERGY MANAGEMENT SERVICES, LLC (hereinafter referred to as EMS), a Louisiana limited liability company whose principal place of business is located in Alexandria, Louisiana, who respectfully represents:

1.
Made defendant herein is the following:

THE CITY OF ALEXANDRIA, LOUISIANA (hereinafter referred to as THE CITY), a Home Rule Charter Municipality of the State of Louisiana as a municipal corporation in Rapides Parish, Louisiana.

JURISDICTION AND VENUE
2.
Jurisdiction and venue are proper in this Court for this proceeding pursuant to La. R.S.
13:5104(B).
EMS AND ITS CONTRACT WITH THE CITY
3.

EMS is a Louisiana-based auditing firm providing energy and utility auditing services and expense reduction recovery analysis to, among others, Louisiana municipalities. EMS’s services include, but are not limited to, the review of charges for the provision of electrical services by various utilities.

4.
On May 11, 2004, the City and EMS entered into a Review and Recovery Agreement
(hereinafter referred to as the “2004 Contract”). The Scope of Services included the following:

EMS serves as an expense reduction and recovery analyst whose mission is to examine, analyze, and audit the energy expenses of CLIENT and to make recommendations to achieve savings and to identify finances owed to CLIENT and assist with the recovery of said funds owed and/or due CLIENT. CLIENT agrees that EMS will review all of CLIENT’s energy expenses charged to and

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owed to CLIENT which was incurred prior to and during the audit, and such review will include all of CLIENT’s vendors. This will include but not be limited to all purchases or sales of energy to and by the CLIENT.

5.
The 2004 Contract provided, inter alia, for compensation of 50% “of the recovery of all
funds or credits received by CLIENT.”
6.
By ordinance, the Alexandria City Council authorized the Mayor to enter into the 2004
Contract. The Mayor in fact signed the 2004 Contract on behalf of the City.
7.
EMS provided services to the City in conformity with the 2004 Contract.
8.

On March 16, 2006, the City and EMS entered into a “Review and Recovery Agreement Amendment” (hereinafter referred to as the “2006 Contract”). The 2006 Contract is attached hereto as Exhibit 1 and is made a part hereof.

9.
The 2006 Contract was negotiated in good faith on the part of EMS. EMS had no reason
to believe that the City was not negotiating the contract in good faith.
10.

Pursuant to Ordinance No. 88-2006, the Alexandria City Council authorized the Mayor to enter into the 2006 Contract and acknowledged that EMS had performed its obligations: “WHEREAS, it is acknowledged herein that Energy Management Services, LLC has performed under the original May 11, 2004 contract for purposes of meetings its agreements there under. ... Ordinance No. 88-2006 is attached hereto as Exhibit 2 and is made a part hereof.

11.
Whereas the 2006 Contract is captioned as an amendment, all terms were restated in full.
12.

The City acknowledged that EMS was indispensable in developing its claims against Cleco Corporation: “WHEREAS, it is acknowledged herein that ENERGY MANAGEMENT SERVIECS, L.L.C. has therefore performed under the original May 11, 2004 contract for purposes of meeting its agreements thereunder.”2

THE CITY V. CLECO SUIT AND SETTLEMENT OF SAME
13.

On or about June 22, 2005, the City filed a “Petition for Damages” in this Court against Cleco Corporation, Cleco Power, L.L.C., Cleco Marketing and Trading, L.L.C. Cleco Generation Services, L.L.C., Cleco Midstream Resources, L.L.C., and Cleco Midstream (referred to collectively herein as “Cleco”). On June 24, 2005, Cleco removed that matter to the United States District Court, Western District of Louisiana under Docket No. 05-CV-1121-A.

14.

On February 24, 2010, the federal court entered a Judgment of Dismissal dismissing with prejudice the City’s claims against Cleco. Via Resolution 8760-2010, adopted on February 23, 2010, the Alexandria City Council confirmed the continuation of authority under Ordinance No. 390-2008 to the Mayor to execute all contracts and documents to accomplish a resolution and settlement of the City’s claims against Cleco.

15.

All evidence in the federal court suit was sealed by order of the federal court. On information and belief, the City’s settlement with Cleco included cash consideration and other non-cash consideration including, but not limited to, utility rebates.

COUNT 1—BREACH OF CONTRACT FOR FAILURE TO COMPENSATE
16.
Under the 2006 Contract, the City agreed to compensate EMS for its services:

For purposes of the matter involving litigation with Cleco Corporation existing at the time of this Agreement, and since suit was filed and the CLIENT required to hire attorneys to advise the interests of CLIENT, EMS shall reduce its recovery as contained in the original Agreement to twenty percent (20%), which is multiplied against the gross amount applicable to any recovery, awarded damages, or any other credits or offsets received by CLIENT, subject to the terms of this Agreement Addendum. This recovery shall be taken as a percentage of all gross proceeds or credits received by CLIENT resulting from the material action of EMS, including without limitation any form of damages and recovery from any litigation, settlement, or determination. The fee due EMS shall be assessed against the gross amount of all sums recovered to which the CLIENT may be entitled as a result of CLIENT’s injuries claimed to result from losses. This fee shall be calculated before the deduction of costs not paid by CLIENT; however, notwithstanding any definition of damages to the contrary, in no event shall CLIENT be required to share attorney fees with EMS.

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