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HomeMy WebLinkAboutContract 34193CITY SEC, RETARY /'Ad CONTRACT NO THE STATE OF TEXAS § TEXAS CLEAN AIR CITIES COALITION § PA` WATION AGREEMENT AND COUNTY OF T� R> A N I & B THESE PIA -m T IPA;I'ION A� EMENT AND BY-LAWS ("Agreement") are made and effective as oday of 2006, by, between and among the CITY OF FORT WORTH, TEXAS ('City' ), an e OT IER MEMBER LOCAL GOVERNMENT UNITS AND ORGANIZATIONS of the TEXAS CLEAN AIR CITIES COALITION (the "Coalition" or "TCACC"). This Agreement is authorized by the Texas Interlocal Cooperation Act (V.T.C.A. Texas Government Code, Chapter 791), and other authorities. WITNESSETH: WHEREAS, the members of the Coalition are dedicated to attaining clean air and reasonably - priced electric energy in sufficient quantities; WHEREAS, the construction of many coal -burning electric power plants in Texas before 2010 may adversely impact air quality in numerous Texas cities and other local government jurisdictions including several of the Coalition members and adversely affect their ability to attain and maintain federally -mandated clean air standards and adversely affect the health, morale, and productivity of their officers and employees and of their' residents, as well as the attractiveness, usefulness of outdoor venues including parks and other entertainment and recreation facilities, and diminution of their revenue associated with such adverse affects; WHEREAS, the members of the Coalition are committed to ensuring that said plants use technology and operating processes that minimize air pollution while still providing sufficient electric generating capacity for their needs at reasonable prices; WHEREAS, the Coalition members are deeply concerned that the governmental agencies that are responsible for permitting said construction may not be using procedures and standards that provide full and fair consideration TCACC's concerns, including procedures and standards that adequately consider the potential cumulative impact of numerous additional plants and which require the cleanest practicable available processes and technologies; WHEREAS, the adoption of full and fair procedures and standards by state and federal agencies that adjudicate and adopt rules on environmental matters is of fundamental importance to all members of TCACC; WHEREAS, failure to attain federally -mandated clean air standards, insufficient electric energy, and unreasonably priced electric energy each can substantially and adversely affect, among other important things, the level of economic activities in the the environs of Coalition members and hence their tax, franchise, right-of-way compensation and other sources of funding for their respective general funds including the General Fund of the City; � a �7 Ak ' hIC71 `l' '�(_�,'�1?1 V I� ±. �� Texas Clean Air Cities Participation Agreement and By -Laws Page 2 of 7 WHEREAS, jointly participating in permitting proceedings and litigation and related efforts with other Coalition members will allow the City to benefit from the outcome of the litigation while minimizing the costs of litigation and of other efforts; and NOW THEREFORE, In consideration of the premises, agreements, covenants and promises set forth herein, it is agreed as follows: 1. TCACC and Standing Steering Committee Membershi The �ITY and the other TCACC members hereby form the TEXAS CLEAN AIR CITIES COALITION ("TCACC"), a Texas not -for -profit unincorporated association. Each member shall approve its membership in the TCACC and designate its representative to receive notices and participate in and vote at TCACC meetings. The TCACC shall be composed of all cities and other local government units and organizations of Texas paying the current nonrefundable membership fee. The fee for the initial period (approximately one year) is $10,000 for each member. The members shall elect a Steering Committee consisting of no more than five (5) persons, each such member being the designated representative to TCACC of a different member which shall function as the Board of Directors. The Steering Committee shall at least include a representative from the cities of Dallas and Houston. The remainder of the representatives shall be selected by the members as of the time of selection based upon diversity of geographic location and population size. Each member of TCACC and each member on the Steering Committee shall have one vote as to decisions of their respective bodies.. Meetings of the Steering Committee shall be open for observation to each member of TCACC whether or not it has a representative on the Steering Committee. Decisions of TCACC shall be by majority of members participating in any proceeding or meeting at which a vote is taken. Cities may participate and vote via telephone and/or via written proxy in form acceptable to the presiding officer, who shall be the senior officer of the Steering Committee present or otherwise participating in a proceeding, or if there be none, then a person selected by members participating at the proceeding. Members who join after the date hereof shall be bound by this instrument as of the date of their membership after having executed a duplicate counterpart hereof and delivered it to the secretary/treasurer. Any member may at any time substitute any other person for any original designated representative to TCACC or for any Original Steering Committee Member and other Steering Committee member by reasonable notice to the secretary/treasurer or to any Steering Committee member if the substitution would replace the secretary/treasurer. Said substitution may be permanent or temporary in accordance with the notice. The substitution should be described for the minutes of the Steering Committee by the substitute or by another Steering Committee member at the first opportunity. The substitute assumes any offices and duties of the replaced member for the duration of the substitution. R Powers of the Steering Committee The CITY and the members delegate to the Steering Committee the power to commence litigation in support of and to intervene in, on behalf of TCACC members, either in their respective individual names or as members of TCACC if TCACC intervenes as an association, permitting proceedings, rulemaking, and related dockets and appeals thereof, represent the interests of cities in matters related to or affecting the construction or permitting of electric generation plants before state and federal legislative, executive, and judicial bodies, and settle, withdraw from, and pay for such activities. The Steering Committee shall fix the amount of the Texas Clean Air Cities Participation Agreement and By -Laws Page 3 of 7 membership fee from time to time, but no more than once within any twelve-month period. A majority of TCACC members may fix a special assessment in addition to any membership fee. Notice of the amount and due date for any fee shall be sent to the designated representative of member. Members may participate and vote via telephone and/or via written proxy in form acceptable to the presiding officer. Any representative or other designee of any class of member is eligible to serve on a subcommittee of the Steering Committee unless otherwise decided by the Steering Committee. Members of any subcommittee may attend any Steering Committee meeting at which the activities or subject of that subcommittee is to be discussed or reported and may speak at the discretion of the chair. 3. Election of Officers The officers of the Steering Committee shall be a chair, one or more co-chairs, and a secretary/treasurer. Subcommittee chairs are not by reason of that office Steering Committee officers. The Steering Committee shall elect a chair and any co-chairs and subcommittee chairs as it deems necessary and form any subcommittees that the Steering Committee deems advisable. The Steering Committee shall also elect a secretary/treasurer who shall, among other duties and powers as may be assigned by the Steering Committee, make, keep current and maintain records of the meetings and transactions of the Steering Committee, of TCACC subject to legal advice, monitor invoices submitted to TCACC by professionals and others, the status of their payment, the reasonableness and necessity of the services represented by said invoices, and of the amounts thereof, and report on such matters and other financial affairs of TCACC to the Steering Committee. 4. Powers of the Officers Each officer elected shall serve at the pleasure of the Steering Committee up to a term of four (4) years. The Steering Committee shall elect or re-elect officers at least every four (4) years. Unless terminated by the Steering Committee or the respective member, the officer shall perform the duties of office until a replacement has been elected. Meetings of the Steering Committee and TCACC shall be upon call of the chair or two (2) members of the Steering Committee. The Steering Committee shall meet at least annually. The chair is authorized by action of the Steering Committee to engage consultants and attorneys and to pay for such services. Any attorneys engaged by the chair to represent the TCACC shall report to the Steering Committee and / or to officers appointed by the Steering Committee for this purpose. The chair or co-chair shall preside at meetings of TCACC and of the Steering Committee. In the absence of a chair or co-chair, participating cities shall select a pro tem presiding officer by majority vote of the cities participating in any meeting or proceeding in person or via telephone. 5. Classes of Membership The Steering Committee may establish one or more classes of associate membership in TCACC for entities with special circumstance such as small size that may allow for lower membership fees, limited or no voting rights, limited or no eligibility to serve on committees, and other qualifications, and limits, in recognition of the size of applicants for membership or other relevant factors. Any entity enjoying any class of membership shall be entitled to attend and be heard orally or in writing as appropriate at any meeting of TCACC and shall have the right to attend meetings of the Steering Committee and to be heard at such meeting orally or in Texas Clean Air Cities Participation Agreement and By -Laws Page 4 of 7 writing if the Steering Committee is entertaining comments from any non-members of the Steering Committee. Any member in any class of membership shall have the right to consult with attorneys representing the Coalition and receive legal advice from such attorneys regarding matters relevant to TCACC to the same extent as full members who are not members of the Steering Committee, and shall be bound by the joint litigation agreement embodied in this instrument. Individuals other than official representatives of local governmental units solely in their respective representative capacities are not eligible for any class of membership in TCACC. 6. Termination of Membership A member may terminate its membership by written notice to the secretary/treasurer effective upon said officer's actual receipt of said notice. If a member fails to pay its membership fee in full within one -hundred eighty (180) days after notification of fee due, that member's membership is terminated without further action. A member is considered notified on the day written notice is sent to its last designated representative on file with the secretary/treasurer. In the event of such termination, the member shall return all documents reports or similar materials, including all copies and all electronic files, developed in furtherance of the activities of TCACC to the chair of the Steering Committee or other person designated by the chair for that purpose. 7. Money Held in Trust The officers shall hold and manage all money collected in trust for the benefit of TCACC and its members collectively. Officers may establish prudent fund accounts that accumulate funding for activities and to pay authorized expenses. Officers and others member respresentatives and designees shall serve without pay, but may be reimbursed reasonable out-of- pocket expenses as approved by the Steering Committee. Any member of any class may request and receive a statement of TCACC revenues and expenses each year. Instead of maintaining the accounts of TCACC, the Steering Committee may authorize one or more law firms retained by TCACC to do so in trust for TCACC, but the Steering Committee and the Secretary/Treasurer shall monitor, report on, and be responsible for said account to TCACC by whomever held. 1.1 Payment for Performance of Governmeal Functions and Services Made from Current evenues By entering into this Agreement, Cityaffirms that it is paying for the performance of governmental functions or services from current revenues available. The payments made under this agreement fairly and adequately compensate the TCACC for the services or functions performed under the contract. 9. Leeal Construction In case any one or more of the terms, provisions, phrases or clauses contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be construed as if such invalid, illegal or unenforce- able portion had never been contained herein. Texas Clean Air Cities Participation Agreement and By -Laws Page 5 of 7 10. Entire Agreement This instrument embodies the complete agreement of the parries hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. This instrument may be executed in multiple counterparts, which together shall be deemed a single instrument. Signatures hereon via telephone facsimile or other electronic, magnetic, or chemical means shall are deemed to be original signatures. 11. No Other Obligations By entering into this Agreement, the parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in parties not signatories hereto. 12. Immunitv It is expressly understood and agreed that in the execution of this Agreement, neither any member nor TCACC waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of governmental powers and functions. 13. Authoritv The undersigned officers and/or agents are properly authorized to execute this Agreement on behalf of the parties hereto, and each hereby certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. 14. Original Members, Officers, and Steering Committee Members The Original Members of TCACC are the Cities of Dallas and Houston, Texas. The original designated member of the Original Steering Committee for the City of Dallas is Mayor Laura Miller and for the City of Houston is Elena M. Marks. Until at least three additional cities shall join the Coalition and pay their initial membership fees, and designate representatives to the Coalition, and the five or more member Cities choose a Steering Committee as provided hereunder, said representatives of Dallas and Houston shall serve as co-chairs of the Original Steering Committee and each shall have the power and duty to do all things that the Steering Committee can do hereunder by majority vote, including the power to execute counterparts of this Agreement on behalf of the Coalition, except that the concurrence of both members of the Original Steering Committee or their designees shall be necessary to retain counsel and other professionals and authorize any expenditures. Texas Clean Air Cities Participation Agreement and By -Laws Page 6 of 7 15. PrivileLyed Communications A joint privilege respecting lawyer -client communications is necessary for the effective pursuit of litigation and other legal proceedings contemplated by the Coalition. All communications by and among any members of whatever classes of membership with any attorney who is representing, or discussing whether to represent, any such member or representing or considering whether to represent the Coalition (an "Attorney") shall be privileged to the fullest extent permitted by law. Each member by joining the Coalition agrees not to disclose any privileged information received after the date hereof from another member or Attorney unless the member wishing to disclose the information first obtains the consent of all other members who may be entitled to claim any privilege or protection with respect to such information, except to the extent explicitly permitted pursuant to a different section of this Agreement or by the Steering Committee. This nondisclosure obligation continues after any member's membership has terminated for any reason, after the conclusion of any litigation, and after this Coalition may be dissolved. 16. Additional Provisions Related to Leeal Representation The members of TCACC acknowledge that it is possible that one or more of the law firms engaged by the Steering Committee may presently, or may in the future, be engaged in factually unrelated litigation or other representation in which the law firm is adverse to one or more of the individual members of TCACC. The members of TCACC agree that the Steering Committee chair shall have the authority subject to paragraph 4 to engage law firm(s) despite the fact that the law firm(s) may be engaged in such representation, so long as the representation involves a factually unrelated matter. The members of the TCACC further acknowledge that at least one of the law firms likely to be engaged by the Steering Committee, Lowerre & Frederick, presently represents Environmental Defense in closely related power plant litigation (i.e., the appeal of the Sandy Creek Fnergy Associates permit) and is a frequent consultant or counsel for environmental organizations and local governments in opposition to power plant draft permits. The members of the TCACC agree that the Steering Committee chair subject to paragraph 4, nonetheless and subject to such contractual conflicts -of -interest safeguards as the Steering Committee deems adequate, may engage Lowerre & Frederick on behalf of the TCACC. Further, the Steering Committee chair may in the chair's discretion, subject to paragraph 4, engage additional law firms to represent TCACC where the law firm is or may become engaged in matters factually related to matters for which such firms are to represent TCACC, so long as such firms are not representing clients whose interests or positions are directly adverse to those of TCACC in specific matters in which such firms represent TCACC. 17. Dissolution TCACC may be dissolved in the same manner as any other unincorporated association may be dissolved under the laws of the State of Texas or by the vote of more than two-thirds of its full members. After dissolution, the officers and Steering Committee members retain the power to wind up the affairs of TCACC. If there remain any funds after payment of TCACC's lawful obligations, the surplus shall be refunded to members of all classes in direct proportion to their respective aggregate payments to TCACC from on and after the date hereof. Texas Clean Air Cities Participation Agreement and By -Laws Page 7 of 7 EXECUTED this the Nb "day of , 2006, by City, signing by and through its City Manager, duly authorized to execute same, and approved as to form by its City Attorney, acting through its duly authorized official. CITY OF FORT WORTH Libbv fatson v Assistant City Manager Date: /V - LJ ' d (i ATTEST - Mqq Marty Hendrix "� contract Aut:lorization City Sm � Date: Date APPROVED AS TO FORM AND LEGALITY �47�,V Assistant Cit Aliorne Y v Y 611il IICI,tiI fi'EC0FD CITY MCIHA"'F Fy, 7a. City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 10/3/2006 CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, September 26, 2006 LOG NAME: 52TCACC REFERENCE NO.: C-21749 SUBJECT: Authorize Execution of Participation Agreement with and Bylaws for the Texas Clean Air Cities Coalition and Appointment of City Representative RECOMMENDATION: It is recommended that the City Council: 1) Approve membership by the City of Fort Worth in the Texas Clean Cities Coalition (the Coalition); 2) Authorize the City Manager to execute a participation agreement governing the City's membership in the Coalition; and 3) Appoint Brian Boerner to represent the City of Fort Worth's interests at Coalition meetings, with authorization for such representative to designate a substitute, if such representative is unable to attend any Coalition meeting. DISCUSSION: The Texas Clean Air Cities Coalition (TCACC) is being formed to address issues surrounding the process of attaining clean air. The Coalition cities want to ensure the cleanest available processes and technologies used at electric generating plants, while taking into consideration the health and well being of the general public and the need for reasonably -priced electric energy in sufficient quantities. Under the terms of the agreement, the designated representative to the Texas Clean Air Cities Coalition (TCACC) will receive notices and participate in and vote at TCACC meetings. The Texas Clean Air Cities Coalition (TCACC) general membership shall be composed of all cities paying the current non-refundable membership fee which is $10,000.00 for the first year's membership. All money collected will be held in trust for the benefit of the member cities collectively. The $10,000.00 membership fee will be paid from the Department of Environmental Management's FY 2005-06 General Fund Budget. Logname: 55SPINKS RAMP Page 1 of 2 FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget , as appropriated, of the General Fund. TO Fund/Account/Centers Submitted for City Manager's Office bin Oriainatina Department Head: Additional Information Contact: FROM Fund/Account/Centers GG01 539120 0522000 $10,000.00 Libby Watson (6183) Brian Boerner (6647) Brian Boerner (6647) Logname: 55SPINKS RAMP Page 2 of 2