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HomeMy WebLinkAboutContract 47159 (2)SECRETARY CONTRACT NO. gir ' \Mil NI L S'II'EAD Austin Charlotte Dallas Fort Worth Houston New Orleans San Antonio The Woodlands Washington, D.C. Carolyn McFatridge Assistant City Attorney City of Fort Worth 1000 Throckmorton Ft. Worth, TX 76102 September 14, 2015 500 Winstead Building 2728 N. Harwood Street Dallas, Texas 75201 214.745.5400 cFF!C. 214.745.5390 Fax winstead.com direct dial. 214/745-5475 cicowart a( wlnstead.com Re: Engagement of Winstead PC (the "Firm") by the City of Fort Worth with respect to Advice related to the Patient Protection and Affordable Care Act ("You" or "you") Dear Carolyn: Thank you for engaging the Firm to represent the City of Fort Worth with respect to Advice related to the Patient Protection and Affordable Care Act for the City of Fort Worth's employee health plan (the "Subject Matter"). We appreciate this opportunity. This letter and the attached Standard Terms of Engagement for Legal Services ("Standard Terms of Engagement") (collectively, the "Engagement Letter") form the agreement under which the Firm will represent you. Please be aware that we may not commence work on your behalf until this letter has been signed and returned to us, so please respond promptly. Specifically, the following terms and provisions apply to this engagement: 1. As explained in the attached Standard Terms of Engagement, you agree to pay the Firm's invoices for legal services and expenses. All legal fees will be charged on an hourly basis. My current hourly rate is $670, but we will bill the City of Fort Worth at the reduced rate of $595. 2. The scope of the Firm's engagement is limited to the Subject Matter. Therefore, the Firm is not responsible for securities or tax filings; corporate minutes; sub -chapter S elections; tax planning or structuring; intellectual property matters; environmental matters; matters before the state or federal government; litigation advice; real estate matters; corporate matters; banking and credit matters; or labor and employment matters. However, should you desire to enlarge the scope of this engagement, we welcome the opportunity to discuss possible additional representation with you. 3. Advanced and General Waiver/Consent to Conflicts Respecting Unrelated Matters. Winstead PC is a large firm, with offices and professionals in many cities. The Firm's practice is broadly based and covers several areas of both domestic and international law. The very size of the firm has created situations where work for one client in an area has precluded lawyers in the Firm from pursuing other matters, whetherselated or unrelated to the first matter. RicE1VE nr 2 6 7115 etiV OF FORT \NOM 1 i r11 i OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX WINS T EAD PC ATTORNEYS S eptember 14, 2015 P age 2 In order to avoid the potential for this kind of restriction on our practice, we request a waiver and advance agreement that the Firm will not be disqualified from representing interests that may become adverse to you in regard to matters that are not substantially related to the S ubject Matter, including representation of adverse interests in litigation which is not substantially related to the Subject Matter. This waiver is not intended to, and would not, permit the Firm to represent interests directly adverse to you in matters that are substantially related to the work done for you. Nor is it intended that there be and there would not be, any waiver of your right not to have confidences or secrets that you transmit to the Firm disclosed to any third party or used against you We would, of course, hold such information that you provide to us in stnct confidence. Accordingly, you agree that you will not object to the Firm's representation of other clients on the basis of your retention of the Firm for employee benefit matters, and you consent to and waive any objection to the Firm's representation of other clients, unless the other representation would involve the Firm representing an interest directly adverse to you on a matter substantially related to the Subject Matter of the Firm's representation of you with respect to employee benefits matters. Further, the nature of the Firm's practice is such that the Firm may from time to time represent one client in a matter while also representing that client's adversary in another unrelated matter. Such concurrent representation is undertaken only if it is the Firm's professional judgment that the Firm can do so impartially and without any adverse effect on our responsibilities to either client. Accordingly,you also agree that you do not consider any such concurrent representation, in unrelated matters, to be inappropriate and you consent to any such present or future concurrent representations. 4. Discharge and Withdrawal. You will have the right at any time to terminate the Firm's representation of you by delivering written notice of termination to us. The Firm will have the right to withdraw from its representation of you at any time with your consent, or for good cause without your consent For example, if you do not honor the terms of this letter (including your or a third -party payor s failure to pay), or if you fail or refuse to cooperate with us or to follow our advice on a material matter, or if we become aware of any fact or circumstance that would, in our view, render our continuing representation of you ineffective, unlawful or unethical then we will have good cause to withdraw. If you discharge us or we elect to withdraw, then you will take all steps necessary to free us of any obligation to perform, including by executing any documents necessary to complete the termination of the representation, and we will take all steps that, in our view, are reasonably practicable to protect your interests. If a discharge or withdrawal occurs, then you will pay us for all costs and expenses paid or incurred by us on your behalf, and you will pay us a reasonable fee for the professional services that we have rendered to you to the date of termination, or in connection with an orderly transition, and for which we previously have not been paid. Unless previously terminated, our representation of you with respect to any matters for which we have been engaged will terminate when we send you our final statement for services rendered. In the course of our representation of you, we likely will come into possession of copies or originals of documents or other materials belonging to you or others (collectively September 14, 2015 Page 3 "materials"). When the particular matter to which those materials relate has been concluded, we will make arrangements either to return the documents to you, retain them in our storage facilities, or to dispose of the materials. Absent any other arrangements made with you, on the expiration of five years after a matter file has been closed, all materials in the file may be destroyed. We may retain our own files, including lawyer work product, pertaining to the representation. Again, thank you for allowing the Firm to be of service to you. If you approve this Engagement Letter, please sign it and return the original signed letter to me. I have enclosed a copy of this letter for your files. AGREED TO AND ACCEPTED: CITY OF FORT WORTH Dated: /9 e/ Ft° ---/Ce ve,s U S c'. C' ha Pcz- s ;Ma CS -Pit rrix 4829-2124-3422v.1 999993-1 Very truly yours, G{eta E. Cowart AVPROVED AS TO FORM AND LEGALITY: �J s #(1. dr 1 Ci?g Contract Aguithoristioa • (1015 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Dote WINSTEAD PC Standard Terms of Engagement for Legal Services - General ("Standard Terms of Engagement") This Standard Terms of Engagement contains the standard terms of our engagement as your lawyers. Unless modified in writing by mutual agreement, these terms will be an integral part of the letter to which this Standard Terms of Engagement is attached (collectively, "Engagement Letter"). Therefore, we ask that you review this Standard Terms of Engagement carefully and contact us promptly if you have any questions. We suggest that you retain a copy of the Engagement Letter in your file. Scope of Winstead's Representation. The legal services that we will provide are limited to the matters described in the accompanying letter. Unless set forth in the attached letter, our engagement does not include any advice or other legal services relating to federal or state securities laws, including appearing or practicing before the U S. Securities and Exchange Commission (SEC), or your disclosure obligations under such laws, and we understand that you will not without our prior written consent, include documents or information we provide to you in any filings with federal or state securities regulators, including the SEC It is our policy that the person or entity that we represent is the person or entity that is identified in our Engagement Letter and does not include any affiliates of such person or entity, unless specifically referred to in the accompanying letter. It is also our policy that the attorney -client relationship will terminate upon our completion of any services that you have retained us to perform. Approach to Providing Services. Each client is served by a client relationship attorney (the "Client Relationship Attorney"). The Client Relationship Attorney should be someone in whom you have confidence and with whom you enjoy working you should assume the attorney sending the Engagement Letter is the designated Client Relationship Attorney. You are free to request a change of Client Relationship Attorney at any time. Subject to the supervisory role of the Client Relationship Attorney, the work or parts of it may be performed by other lawyers and support personnel in the Firm. If you are concerned about our performance or the performance of the Client Relationship Attorney, you may call our Chief Executive Officer at 214.745.5400, or our Executive Director at 214.745.5400. Additional Services We Provide. We frequently offer business services, many at no charge, that provide significant value to our clients and friends. For example, we provide advisories and seminars that offer timely insights and legislative updates on a variety of issues. Information received through these advisones and seminars is not to be considered as legal advice for any particular legal matter. Services We Expressly Do Not Provide. Members of our law firm are from time to time serving in elected or appointed positions with various governmental or regulatory bodies. Members of our law firm must discharge those duties without regard to their employment or association with the Firm, and more importantly, it would be a prohibited conflict of interest for them to give any special consideration, benefit, or access to you or any other client of the Firm. Accordingly, you acknowledge and confirm that this engagement of the Firm is not in consideration for or in contemplation of any expected benefit to be derived from the activities of any elected or appointed official. You also understand that, in the course of such public service, these persons may be called upon to take positions, cast votes, adopt rules and regulations or otherwise act in a manner adverse to your business interests. You acknowledge that such events are not conflicts of interest or ethical violations of the Firm's duties to you as a client. You further acknowledge that in the course of the Firm's engagement by other clients expressly for lobbying any governmental body at the federal, state, county or municipal level, we could be advocating positions or attempting to achieve outcomes or results for such clients that adversely affect you or your industry (often without our knowledge). You agree that the engagement of the Firm for the legal services contemplated herein does not, in and of itself, create a conflict of interest or ethical violation by virtue of our lobbying activities. We further do not undertake or assume any duty to advise you as to what clients or positions we have undertaken in a lobbying role which would be detrimental to you or your industry. Potential Conflicts. Because we represent many other companies and individuals, it is possible that during the time that we are representing you, some of our present or future clients may become involved in transactions or disputes with you. You agree that we may continue to represent or may u ndertake in the future to represent existing or new clients in any matter that is not substantially related to our work for you even if the interests of such clients in those other matters are directly adverse. We agree, however that your prospective consent to conflicting representation shall not apply in any instance where, as a result of our representation of you, we have obtained proprietary or other confidential information of a nonpublic nature, that, if known to such other client, could be used by such client to your material disadvantage. Advice about Possible Outcomes. We may express o pinions or beliefs concerning this matter or various courses of action and the results that might be anticipated. Any such statement made by any lawyer of our Firm is intended to be an expression of opinion only, based on information available to us at the time, and should not be construed as a promise o r guarantee. Client Responsibilities. You agree to pay our invoice for services and expenses as explained below. In addition, you agree to be candid and cooperative with us and to keep us informed with complete and accurate factual information and documents relevant to our representation. Fees. We will bill you on a regular basis, normally each month, for fees, disbursements and charges. You agree to make payment upon receipt of invoice unless other billing arrangements have been agreed to in writing. Moreover, you agree that your obligation to pay our fees is not dependent o n the outcome of our legal representation. The principal basis for computing our fees will be the amount of time spent on the matter by various lawyers and legal assistants multiplied by their individual hourly billing rates. Our billing rates are subject to change from time to time. We are often asked to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. If we provide an estimate, it should not be construed as a maximum or fixed -fee quotation. The ultimate cost frequently is more or less than the amount estimated. In undertaking representation of a client on a contingent fee basis, any such contingent fee arrangement must be reflected in a written contingent fee agreement. If you disagree with the fees or expenses on any invoice, please contact the Client Relationship Attorney or our Executive Director immediately If you do not report a concern about the fees to us within 60 days after receipt of an invoice, then it will be presumed that the fees were reasonable and the services provided were necessary. We will give you prompt notice if your account becomes delinquent more than 30 days beyond the date of the invoice, and you agree to bring the account or the retainer deposit current. If the delinquency continues and you do not arrange satisfactory payment terms we may terminate the representation. In litigation matters, our ability to terminate or withdraw from the case may be subject to court approval. We reserve the right to pursue collection of any unpaid balance of your account. You agree to pay the costs of collecting the debt, including court costs, filing fees and a reasonable attorney's fee. Disbursements and Charges. We will charge our clients not only for legal services rendered, but also for other ancillary services provided Examples include charges for in- house messenger deliveries, computerized research services, and the use of our facsimile laser printing, and photocopy machines. While our charges for these services are measured by use, they do not, in all instances, reflect our actual out-of-pocket costs. While we are constantly striving to maintain these charges at rates that are lower than those maintained by others in our markets, in some instances the amounts charged may exceed the actual costs to the Firm. The current charges for some typical additional services are as follows: Standard Duplication Facsimile Messenger, Postage, Westlaw / Lexis $.18/page* $1.00/page* At cost** *These charges represent our best estimate of our actual direct cost incurred for material, manpower, and equipment usage. Oversized and other unusual duplication may be charged at a higher rate **Cost is determined using standard rate scales of the vendors of these products. We may disburse funds on your behalf for filing fees, overnight deliveries, necessary travel and other miscellaneous items as required to complete the scope of our services. We will bill you at actual cost for these types of expenses. We may also submit bills and invoices to you for payment to vendors directly. Retainer and Clients Funds. If the attached letter requires the payment of a retainer, you grant us a security interest in the retainer deposit. Unless otherwise agreed, the retainer deposit will be credited toward your unpaid invoices, if any, at the conclusion of services. If our bills are not paid within 30 days of the date of the invoice, we may apply the retainer to those unpaid bills. At the conclusion of our legal representation, the remaining balance will be returned to you If the retainer deposit proves insufficient to cover current expected fees, expenses and charges, it may have to be increased. Any understanding regarding a retainer deposit, which is inconsistent with the foregoing, must be expressly confirmed in the engagement letter or subsequent written communication from us. Retainer deposits which are received to cover specific cost items will be disbursed as provided in our agreement with you, and you will be notified from time to time of the amounts applied or withdrawn Any amount remaining after disbursement will be retumed to you. All retainers and clients' funds are held in clients' funds accounts in trust for your benefit at financial institutions in Texas. If the deposit, whether it be a retainer or other amount which we will hold for you, represents a significant amount and/or will be held for a long period of time you may request that the deposit be placed in a segregated interest - bearing account. When the funds are small or are to be held for only a short period of time, it is our practice to place the funds in a pooled account (which does not earn interest) maintained in accordance with State Bar of Texas rules. Unless you instruct us otherwise, we will follow the above practices with respect to client funds held on your behalf. Termination of Engagement. You may at any time terminate our services and representation upon written notice to the Firm. Such termination shall not, however, relieve you of the obligation to pay for all services already rendered, including work in progress and remaining incomplete at the time of termination, and to pay for all expenses incurred on your behalf through the date of termination. We reserve the right to terminate our representation of you at any time by providing advance written notice to you. If permission for withdrawal is required by a court or arbitration panel, we will promptly request such permission, and you agree not to oppose our request. Conclusion of Representation: Retention and Disposition of Documents. Unless previously terminated our representation of you with respect to the agreed upon scope of representation will terminate upon sending you our final statement for services rendered. Following such termination, any otherwise nonpublic information you have supplied to us, which is retained by us, will be kept confidential in accordance with applicable rules of professional conduct. Your papers and property will be returned to you upon receipt of payment for outstanding fees, expenses and charges unless a court orders otherwise. We may retain our own files, including lawyer work product, pertaining to the representation. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to destroy or otherwise dispose of any documents or other materials retained by us after the termination of the engagement Unless you actually engage us after the closing to provide additional advice on issues arising from this representation we have no continuing obligation to advise you with respect to future legal developments. A Resolution NO. 4440-04-2015 AUTHORIZING THE EMPLOYMENT OF GRETA E. COWART OF THE LAW FIRM OF WINSTEAD, PC, AS OUTSIDE LEGAL COUNSEL TO ASSIST THE CITY ATTORNEY'S OFFICE IN ADVISING THE HUMAN RESOURCES DEPARTMENT IN EMPLOYEE HEALTH AND WELFARE BENEFIT MATTERS, INCLUDING THE CITY'S COMPLIANCE WITH THE FEDERAL PATIENT PROTECTION AND AFFORDABLE CARE ACT, AND AUTHORIZING PAYMENT OF COUNSEL FEES IN AN AMOUNT NOT TO EXCEED $20,000.00 WHEREAS, the City of Fort Worth periodically requires legal advice regarding its employee health and welfare benefit plan services, including legal advice with regards to the City's compliance with the federal Patient Protection and Affordable Care Act and related tax regulations ("Affordable Care Act"); and WHEREAS, the Affordable Care Act includes employer -mandated reporting requirements and penalties that affect municipalities; and WHEREAS, a specific need has arisen to protect the City's interest regarding its employee health plans and services; and WHEREAS, Greta Cowart has special competency in the areas of health care and tax related issues and regularly assists municipalities with maintaining regulatory compliance, and has agreed to assist the City with these issues; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS, THAT: 1. The City is authorized to retain Greta E Cowart of the law firm of Winstead, PC, as outside counsel under Chapter VI, Section 3 of the City Charter, for legal services related to advising the Human Resources Department in employee health and welfare benefit matters, including legal advice with regards to the City's compliance with the federal Patient Protection and Affordable Care Act; and Resolution No. 4440-04-2015 2. The City is authorized to pay counsel fees to Greta E Cowart of the law firm of Winstead, PC, in an amount not to exceed $20,000.00. Adopted this 21st day of April, 2015. ATTEST: By• I4 11 ar Kay *it); Sel retary 1 M&C Review Page 1 of 2 Official site of the City of Fort Worth, Texas FORT WORTH COUNCIL ACTION: Approved on 4/21/2015 - Resolution No. 4440-04-2015 DATE 4/21/2015 REFERENCE NO.: CODE: C SUBJECT: **C-27268 TYPE: CONSENT LOG NAME PUBLIC HEARING: Adopt Resolution Authorizing Employment of Greta E. Cowart of the Law Firm of Winstead, PC, as Outside Counsel for Legal Services Related to Employee Health and Welfare Benefit Matters, and Authorizing Payment of Counsel Fees in an Amount Not to Exceed $20,000.00 (ALL COUNCIL DISTRICTS) 12RETAIN LEGAL COUNSEL FOR HEALTH AND WELFARE BENEFIT PLANS NO RECOMMENDATION: It is recommended that the City Council adopt the attached resolution authorizing the employment of Greta E. Cowart of the law firm of Winstead, PC, as outside counsel under Chapter VI, Section 3, of the City Charter for legal services related to employee health and welfare benefit matters including the City's compliance with the federal Patient Protection and Affordable Care Act, and authorizing payment of counsel fees in an amount not to exceed $20,000.00. DISCUSSION: The Human Resources Department and the City Attorney's Office have requested that the City retain the services of Greta E. Cowart of the law firm of Winstead, PC, with regard to the City's employee health and welfare benefit plans, in order to assist the City Attorney s Office in advising the Human Resources Department and to provide legal advice with respect to the City's compliance with the federal Patient Protection and Affordable Care Act (Affordable Care Act), Pub. L. No. 111-148, 124 Stat. 119 (2010). Ms. Cowart has extensive experience advising municipalities on complex employee benefit plan issues including many issues under the Affordable Care Act and related tax regulations. On March 23, 2004, (M&C G-14301) the City retained the services of Greta E Cowart to assist the City with reviewing documents prepared by City staff, conferring with City staff, drafting legal opinions, giving advice on procedures, as well as advise on other legal issues concerning the City's self -insured health plan and contract with Aetna. On January 11, 2005, (M&C G-14650) the City Council authorized the engagement of Greta E Cowart to assist the City with legal issues regarding the City's employee health and welfare benefit plans, including but not limited to Agreements with its third -party administrators. Ms. Cowart's services under the 2005 Agreement included meeting with City staff; drafting legal opinions preparing and reviewing documents; reviewing the City's 2004 Request for Proposal and responses; reviewing the negotiated contract terms and finalizing the related documents, including the Administrative Services Agreement with the third -party administrator; as well as advise staff on other legal issues concerning the City's self -insured health and welfare benefit plans. In January of 2015 Human Resources staff encountered the need to seek guidance regarding the City's health plans that cover Medicare -eligible employees and its compliance with the Affordable Care Act. Therefore, Staff recommends engaging Greta Cowart, who has considerable experience in health care law and tax regulatory compliance, as outside legal counsel. FISCAL INFORMATION/CERTIFICATION: http://apps.cfwnet.org/council_packet/mc Jeview.asp9ID=20960&councildate=4/21 /2015 10/26/2015 M&C Review Page 2 of 2 The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Group Health Insurance Fund. The Fiscal Year 2015 budget included appropriations in the amount of $300,000.00 for legal and similarly related services To date, the Fund has existing expenses and commitments totaling $113,281 61; upon approval of the recommendation, remaining funds will be $166,718.39. TO Fund/Account/Centers FROM Fund/Account/Centers FE85 531200 0148510 $20,000.00 S ubmitted for City Manager's Office bv: O riginating Department Head: Additional Information Contact: S usan Alanis (8180) S arah Fullenwider (7606) Will Trevino (7553) Gerald Pruitt (7616) ATTACHMENTS Resolution for Outside Counsel - Health Benefits.doc http://apps.cfwnet.org/council_packet/mc review.asp?ID=20960&councildate=4/21 /2015 10/26/2015