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HomeMy WebLinkAboutContract 49440 CITY SECRETARY , CONTRACT N0. YL C Lloyd 816 Congress Avenue,Suite 1900 Aus Telephone: ( 12)3 Gosselink Telephone;(512)322-5800 _ Facsimile: (512)472-0532 iH•u ATTORNEYS AT LAW www,iglavuFrm.com Mr.Klein's Direct Line:(512)322-5818 Email: dklein@lglawfirm.com OFFICIAL RECORD July 13, 2017 CITY SECRETARY FT.WORTH,TX Ms. Sarah J. Fullenwider, City Attorney VIA EMAIL AND FIRST ELASS MAIL City of Fort Worth 200 Texas Street Fort Worth,Texas 76102 Re: Engagement Letter—City of Fort Worth—Wastewater CCN; Billing File Number: 794-04 Dear Ms. Fullenwider: As you know, on March 13, 2017, our firm submitted a response to the City of Fort Worth's Request for Qualifications ("RFQ") to retain a Texas firm with an expertise in assisting Texas cities in acquiring a Wastewater Certificate of Convenience and Necessity ("CCN") from the Public Utility Commission ("PUC"). It is our understanding that the City Council of the City approved a resolution to hire our firm as outside counsel and consultant to the City in obtaining a Wastewater CCN at its meeting, open to the public, on June 20, 2017. We certainly appreciate the opportunity to work with the City again on this important matter. As part of our routine in opening new matters, and in part to comply with the provisions of Texas Local Government Code, Chapter 176, we provide our clients with an engagement letter. The purpose of this letter is to set forth our understanding of the legal and consulting services to be performed by us for this engagement and the basis upon which we will be paid for those services. This letter confirms that Lloyd Gosselink Rochelle & Townsend, P.C. ("Lloyd Gosselink") will represent the City of Fort Worth with respect to assisting the City Attorney with preparing, providing legal counsel, consulting, and prosecuting an application for a wastewater CCN at the Public Utility Conunission, and other related matters (the "Matter"). Based upon the scope of work detailed in the RFQ and the nature of the Matter, in general, it is likely that outside engineering services will be necessary to complete the following tasks, and such tasks are also included in the Matter: • Research and provide all retail public utilities, districts and municipalities located within a 5 mile buffer (measured from the outer boundary of the city limits of the City) of the proposed sewer service area; and all groundwater conservation districts and counties located within the proposed sewer service area requested with the CCN application; • Create a metadata GIS sewer boundary of the City's existing sewer service area that meets the PUC requirements, if any, excluding all existing sewer CCN holders, any existing municipality city limits/extra-territorial jurisdiction ("ETJ"), and any sewer discharge permit holders' service boundary within that boundary. Review and recommend additional drainage areas consistent with the City's development policies and agreements; Lloyd Gosselink Rochelle & Townsend, P.C. Ms. Sarah J. Fullenwider July 13, 2017 Page 2 • Provide written and electronic versions of maps as needed for a sewer CCN application; • Coordinate with the City Attorney's office and the Water Department and prepare the Sewer CCN application itself (with all attachments, exhibits, & maps) for City's review, signature and submission; • Provide and Coordinate Notices required by PUC and coordinate with City staff with legal approval on responding to any inquiries from the Notices; • Coordinate with City staff and provide responses to PUC Staff and others during the application process; • Setup and attend any public hearings required to provide responses needed either by PUC staff, other utilities or individuals; and • Provide any final mapping required for the Public Utility Commission and City's GIS layers. Our acceptance of this representation (the "Representation") becomes effective upon our receipt of an executed copy of this agreement. Terms of Engagement This letter sets out the terms of our engagement in the Representation. Certain of those terms are included in the body of this letter, and additional terms are contained in the attached document, entitled Additional Terms of Engagement, dated August 27, 2013. That document is expressly incorporated into this letter, and it should be read carefully. The execution and return of the enclosed copy of this letter constitutes an agreement to all the terms set forth in this letter and in the attached Additional Terms of Engagement. It is understood and agreed that our engagement is limited to the Representation, and our acceptance of this engagement does not imply any undertaking to provide legal and consulting services other than those set forth in this letter. Personnel Who Will Be Working on the Matter 1 will be the attorney in charge of the Representation, and I will be working on the Matter. You may call, write, or e-mail me whenever you have any questions about the Representation. Other firm personnel, including firm lawyers and paralegals, will participate in the Representation if, in our judgment, their participation is necessary or appropriate. Legal Fees and Other Charges Our fees in the Matter will be based on the time spent by firm personnel, primarily firm lawyers or paralegals, who participate in the Representation. We will charge for all time spent by such personnel in the Representation in increments of tenths of an hour. We charge for time spent in activities including but not limited to the following: telephone and office conferences with clients, representatives of clients, opposing counsel, and others; conferences among our attorneys and paralegals; factual investigation, if needed; legal research; file management; Lloyd Gosselink Engagement Letter 1.92 Ms. Sarah J. Fullenwider July 13, 2017 Page 3 responding to requests from you that we provide information to you or your auditors; drafting letters and other documents; and travel, if needed. Legal fees and related expert costs are difficult to estimate in administrative matters, such as this Matter, when it is uncertain whether the City's application will be protested and a contested case hearing will ensue. Accordingly, we have made no commitment concerning the fees and charges that will be necessary to resolve or complete the Representation, although we will make every effort to manage fees and costs by working efficiently and cost-effectively. Lloyd Gosselink will provide legal services in an amount not to exceed One Hundred-Fifty Thousand Dollars and no Cents, and it will not provide services in excess of that amount without the prior authorization of the City. My time is billed at the rate of$290 per hour; Christie Dickenson, my Associate, bills at the rate of $240 per hour; and Lissette Ruiz, our paralegal, bills at the rate of $120 per hour. Other lawyers, paralegals and other personnel may be assigned as necessary to achieve proper staffing. We utilize briefing clerks, paralegals, file clerks and other support personnel to perform those tasks not requiring the time of any attorney, Their time is billed at an amount determined by the experience of the individual. The foregoing rates may be adjusted annually and, if so,will be noted on your bill. We will submit all out-of-pocket expenses incurred for reimbursement, and we will pay such expenses upon receipt of payment from the City. We will endeavor to have a statement of services rendered and expenses incurred by the 15th of the following month. Full payment is due on receipt of the statement. Conflicts of Interest Before accepting the Representation, we have undertaken reasonable and customary efforts to determine whether there are any potential conflicts of interest that would bar our firm from representing you in the Matter. Additionally, in order that we comply with the requirements of Chapter 176 of the Texas Local Government Code, we have performed an internal conflicts of interest inquiry. Based on the information obtained from this inquiry, we will file a completed conflict of interest questionnaire with the individual deemed as the records administrator for your entity. Based on the information available to us, we are not aware of any potential disqualification. We reviewed that issue in accordance with the rules of professional responsibility adopted in Texas. Conclusion This letter and the attached Additional Terms of Engagement constitute the entire terms of the engagement of Lloyd Gosselink Rochelle & Townsend, P.C. in the Representation. These written terms of engagement are not subject to any oral agreements or understandings, and they can be modified only by further written agreement signed both by you and Lloyd Gosselink Rochelle & Townsend, P.C. Unless expressly stated in these terms of engagement, no obligation or undertaking shall be implied on the part of either you or Lloyd Gosselink Rochelle & Townsend, P.C. Please carefully review this document, which includes this letter and the attached Additional Terms of Engagement. If there are any questions about these terms of engagement, or Lloyd Gosselink Engagement Letter 1.92 Ms. Sarah J. Fullenwider July B. 2017 Page 4 if these terms are inaccurate in any way, please let me know immediately. If acceptable, we would appreciate you signing and returning the enclosed duplicate original of this document. Sincerely, David J. Klein DJK/ldp 7381069 Enclosures Sarah J. l:ull� wider 7 AI ----- D we Attachment Lloyd Gosselink Engagement Letter 1.92 Signature Page 2 for Wastewater CCN Outside Counsel and Consultant Approved and Recommended b4 LJ Jesus 4" Chapa / Assistant City Manager Attest Mary Kayse City Secretary M&C G-19030 �XAS, OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Additional Terms of Engagement This supplement to our engagement letter sets out additional terms of our agreement to provide the representation described in our engagement. Because these additional terms of engagement are a part of our agreement to provide legal services,you should review them carefully and should promptly communicate to us any questions concerning this document. We suggest that you retain this statement of additional terms along with our engagement letter and any related documents. The Scope of the Representation As lawyers, we undertake to provide representation and advice on the legal matters for which we are engaged. It is important for our clients to have a clear understanding of the legal services that we have agreed to provide. Thus, if there are any questions about the scope of the Representation that we are to provide in the Matter, please raise those questions promptly,so that we may resolve them at the outset of the Representation. Any expressions on our part concerning the outcome of the Representation, or any other legal matters, are based on our professional judgment and are not guarantees. Such expressions,even when described as opinions, are necessarily limited by our knowledge of the facts and are based on our views of the state of the law at the time they are expressed. Upon accepting this engagement on your behalf,Lloyd Gosselink Rochelle&Townsend, P.C. agrees to do the following: (1) provide legal counsel in accordance with these terms of engagement and the related engagement letter, and in reliance upon information and guidance provided by you; and(2) keep you reasonably informed about the status and progress of the Representation. To enable us to provide effective representation,you agree to do the following: (1)disclose to us, fully and accurately and on a timely basis, all facts and documents that are or might be material or that we may request, (2) keep us apprised on a timely basis of all developments relating to the Representation that are or might be material, (3)attend meetings, conferences, and other proceedings when it is reasonable to do so, and (4) otherwise cooperate fully with us. Our firm has been engaged to provide legal services in connection with the Representation in the Matter,as specifically defined in our engagement letter. After completion of the Representation in the Matter, changes may occur in the applicable laws or regulations that could affect your future rights and liabilities in regard to the Matter. Unless we are actually engaged after the completion of the Representation to provide additional advice on such issues, the firm has no continuing obligation to give advice with respect to any future legal developments that may pertain to the Matter. It is our policy and your agreement that the person or entity that we represent is the one identified in our engagement letter, and that our attorney-client relationship does not include any related persons, employees of the client,or related entities. Who Will Provide the Legal Services As our engagement letter confirms, Lloyd Gosselink Rochelle &Townsend, P.C. will represent you in the Matter. Lloyd Gosselink Rochelle&Townsend, P.C. is a Texas professional corporation. Although our firm will be providing legal services, each client of the firm customarily has a relationship principally with one attorney, or perhaps a few attorneys. At the same time, however, the work required in the Representation, or parts of it, may be performed by other firm personnel, including lawyers and paralegals. Such delegation may be for the purpose of involving other firm personnel with experience in a given area or for the purpose of providing services on an efficient and timely basis. Page 1 August 27.2013 Communication and Confidentiality In keeping with technological advancements and the corresponding demands of clients, it is the practice of the firm to use electronic (email) correspondence from time to time to communicate and to transmit documents. As such, the possibility exists that electronic transmissions could be intercepted or otherwise received by third parties and lose their privileged nature if the method of communication is ruled to lack sufficient confidentiality. As with any correspondence regarding legal representation, regardless of the manner of transmission, we urge you to use caution in its dissemination in order to protect its confidentiality. By signing below,you agree that we may use email in the scope of the Representation. We recognize our obligation to preserve the confidentiality of attorney-client communications as well as the client confidences, as required by the governing rules of professional responsibility. If the Matter involves transactions, litigation or administrative proceedings or like proceedings in which our firm appears as counsel of record for you in publicly available records, we reserve the right to inform others of the fact of our representation of you in the Matter and (if likewise reflected or record in publicly available records) the results obtained unless you specifically direct otherwise. Periodically, the firm is asked to provide a Representative Client List to prospective clients and in various legal directories (e.g., Martindale-Hubbell and the Texas Legal Directory). Unless you advise us to the contrary, we may disclose to third parties the fact that our firm represents you. Lloyd Gosselink is not requesting authorization to disclose any privileged information obtained during its representation. Disclaimer Lloyd Gosselink Rochelle&Townsend,P.C.has made no promises or guarantees to you about the outcome of the Representation of the Matter, and nothing in our engagement letter or these terms of engagement shall be construed as such a promise or guarantee. Termination At any time, you may, with or without cause, terminate the Representation by notifying us in writing of your intention to do so. Any such termination of services will not affect the obligation to pay for legal services rendered and expenses and charges incurred before termination,as well as additional services and charges incurred in connection with an orderly transition of the Matter. We are subject to the codes or rules of professional responsibility for the jurisdictions in which we practice. There are several types of conduct or circumstances that could result in our withdrawing from representing a client, including, for example, the following: non-payment of fees or charges; misrepresentation or failure to disclose material facts; fraudulent or criminal conduct; action contrary to our advice; and conflict of interest with another client. We try to identify in advance and discuss with our clients any situation that may lead to our withdrawal. A failure by you to meet any obligations under these terms of engagement shall entitle Lloyd Gosselink Rochelle & Townsend, P.C. to terminate the Representation. In that event, you will take all steps necessary to release Lloyd Gosselink Rochelle&Townsend, P.C. of any further obligations in the Representation or the Matter, including without limitation the execution of any documents necessary to effectuate our withdrawal from the Representation or the Matter. The right of Lloyd Gosselink Rochelle & Townsend, P.C. to withdraw in such circumstances is in addition to any rights created by statute or recognized by the governing rules of professional conduct. Our engagement letter specifically explains our fees for services in the Matter. We will bill on a regular basis, normally each month, for fees and expenses and charges. It is agreed that you will make full payment within thirty (30) days of receiving our statement. We may give notice if an account becomes delinquent, and it is further agreed that any delinquent account must be paid upon the giving of such notice. If the delinquency continues and Page 2 August 27,2013 you do not arrange satisfactory payment terms, we may withdraw from the Representation. However, any termination by either party may be subject to,or controlled by,orders of a court. Document Retention Upon completion of our work on this matter, it is our firm's policy that your original documents (e.g., permits, licenses, deeds, wills, etc.) and other client property be returned within a reasonable period of time. As to any documents so returned, we may elect to keep a copy of the documents in our stored files. Our own files, including lawyer work product pertaining to the matter, will be retained by the firm. These firm files include firm administrative records, time and expense reports, billing and accounting records,and internal work product. Internal work product includes drafts, notes, internal communications(in both paper and electronic mediums), and legal and factual research prepared for the internal use of our firm's lawyers. All documents retained by the firm will be transferred to the person responsible for administering our records retention program. For various reasons, including the minimization of unnecessary storage expenses,we reserve the right to destroy or otherwise dispose of any such documents or other materials retained by us after the completion of our work without additional notice. Charges for Expenses and Services Our invoices will include amounts for legal services rendered and for other expenses and services. Examples of other expenses and services include charges for photocopying, travel and conference expenses, messenger deliveries,computerized research,and other electronic transmissions or filings. Rates for our legal services, expenses and charges are subject to change from time to time and will be noted on your bill. In some situations, we can arrange for such services and expenses to be provided by third parties billed through our billings or by direct billing to the client. Standards of Professionalism and Attorney Complaint Information Pursuant to rules promulgated by the Texas Supreme Court and the State Bar of Texas, we are to advise our clients to the contents of the Texas Lawyer's Creed,a copy of which is attached. In addition,we are to advise clients that the State Bar of Texas investigates and prosecutes complaints of professional misconduct against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is available in our office in Austin and is likewise available upon request. A client that has any questions about the State Bar's disciplinary process should call the Office of the General Counsel of the State Bar of Texas at 1-800-932-1900 toll free. Additional Terms of Engagement 1.7.doc Page 3 August 27,2013 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Chr . opez-R olds Sr.Assistant City Attorney ❑ This form is N/A as No City Funds are associated with this Contract Printed Name Signature M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA Fa irftm COUNCIL ACTION: Approved on 6/20/2017 -Resolution No. 4801-06-2017 DATE: 6/20/2017 REFERENCE NO.: ""G-19030 LOG NAME: 12WWCCN CODE: G TYPE: CONSENT PUBLIC HEARING: NO SUBJECT: Adopt Resolution Authorizing Retention of the Law Firm of Lloyd Gosselink Rochelle & Townsend, PC , for a Fee Not to Exceed $150,000.00, Pursuant to Chapter VI, Section 3 of the City Charter, to Provide Consulting Services and Legal Representation to the City of Fort Worth in Acquiring a Wastewater Certificate of Convenience and Necessity (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council adopt the attached Resolution to retain the law firm of Lloyd Gosselink Rochelle &Townsend, PC , for a fee not to exceed $150,000.00, pursuant to Chapter VI, Section 3 of the City Charter, to provide consulting services and legal representation to the City of Fort Worth in acquiring a wastewater Certificate of Convenience and Necessity. DISCUSSION: The Water Department issued a Request for Qualifications (RFQ)to seek a consultant with expertise in obtaining a wastewater Certificate of Convenience and Necessity(CCN) for the City of Fort Worth. The law firm of Lloyd Gosselink Rochelle &Townsend, PC (Lloyd Gosselink) submitted a response to the RFQ. Because of the law firm's extensive knowledge of the CCN process and experience in representing cities on CCN matters,the Water Department would like to hire Lloyd Gosselink to provide legal, technical and consulting services to acquire a wastewater CCN. Lloyd Gosselink will team up with Freese and Nichols as a subcontractor to provide the engineering and technical requirements of obtaining a CCN. Because the firm will be acting in a legal capacity as well as a consultant, the City Charter requires the outside counsel to be approved by resolution. The City of Fort Worth provides wastewater service to retail customers within the city, it's Extraterritorial Jurisdiction and to 23 wholesale customers in the surrounding counties. The City's collection system consists of 12 sewer basins. As the City continues to grow, the system also demands necessary expansion and new facilities which are costly endeavors. CCNs are granted by the Public Utility Commission (PUC) through a lengthy and robust process that includes public notice, hearings and technical mapping. A CCN authorizes and requires utilities to provide continuous and adequate service to every customer who requests service in a certificated area. In turn, the CCN provides the City the exclusive right to service the certificated area, therefore protecting the City's investment. The City currently has a water CCN and would like to obtain the same for the protection of its wastewater system. Lloyd Gosselink would be required to provide required notice to all retail public utilities, districts and municipalities of the proposed CCN area; to create a meta data GIS sewer boundary of the existing sewer service area that meets the PUC requirements, as well as any other mapping requests by the PUC; and to prepare and submit the CCN application to the PUC. The City Attorney and the City Manager are requesting that the City Council approve the hiring of Lloyd Gosselink Rochelle &Townsend, PC, both as outside legal counsel and consultant, and to authorize payment to the firm in an amount not to exceed $150,000.00 for the firm's time spent on acquiring the wastewater CCN. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendation, funds will be available in http://apps.cfwnet.org/council_packet/mc_review.asp?ID=24823&councildate=6/20/2017 7/24/2017 M&C Review Page 2 of 2 the current operating budget, as appropriated, of the Water and Sewer fund. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year ChartField 2 Submitted for City Manager's Office by: Jay Chapa (5804) Kara Shuror(8819) Originating Department Head: Sarah Fullenwider(7606) Additional Information Contact: Christa Reynolds (8984)Chris Harder(5020) ATTACHMENTS 1295LIovd.pdf FID Info.pdf Lloyd Gosselink Res.CCN.doc http://apps.cfwnet.org/council_packet/mc review.asp?ID=24823&councildate=6/2012017 7/24/2017 (", lqo' o CERTIFICATE OF INTERESTED PARTIES FORM 1295 101`1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-220785 Lloyd Gosselink Rochelle&Townsend, P.C. Austin,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 06/08/2017 being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. 794-4 2017.06.08 Legal Services Nature of interest 4 Name of Interested Party City,State,Country(place of business) (check applicable) Controlling Intermediary Klein, David Austin, TX United States X Crump,Georgia Austin,TX United States X Townsend,Lambeth Austin,TX United States X Rochelle, Martin Austin,TX United States X Gosselink, Paul Austin,TX United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. �v*' LAURA DIPASQUALE 0:U tMsuc•ar ra a texna IOe 10094830 "rokt�' COMM.EXP,04-13-2019 Sig ture of authorized agent of contracting business entity AFFIX NOTARY STAMP/SEAL ABOVE Sworn to and subscribed before me,by the said dull J• X I C)Iy this the �{Vly. day of WJE 20—L-L—,to certitywhich,witness my hand and seal of office. APAP Lat,tna. tJ; I'a5 vale- o�ivt !'u 'C- Signature of officer administe g oath Printed name of officer adminis g oath Title of o i er administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883