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500 Winstead Building 214.745.5400 aFrrca
2728 N. Harwood Street 214.745.5350 FAX
Dallas,Texas 75201 winstead.com
September 14, 2015
direct dial: 214/745-5475
gcowart(aa.winstead.com
Carolyn McFatridge
Assistant City Attorney
City of Fort Worth
1 000 'Throckmorton
Ft. Worth, TX 76102
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 Fart 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, whetr rpJo ,ct,v„ f pJq ed to the first matter.
UFFICOAL RECORD
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September 14, 2015
Page 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
Subject 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 strict 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.
Very truly yours,
WINSTEA PC
By:
G(eta E. Cowart
AGREED TO AND ACCEPTED:
CITY OF FORT WORTH
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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 cast votes, adopt rules and regulations or otherwise act in a
that we will provide are limited to the matters described in the manner adverse to your business interests. You
accompanying letter. Unless set forth in the attached letter, acknowledge that such events are not conflicts of interest or
our engagement does not include any advice or other legal ethical violations of the Firm's duties to you as a client. You
services relating to federal or state securities laws, including further acknowledge that in the course of the Firm's
appearing or practicing before the U.S. Securities and engagement by other clients expressly for lobbying any
Exchange Commission (SEC), or your disclosure obligations governmental body at the federal, state, county, or municipal
under such laws,and we understand that you will not,without level, we could be advocating positions or attempting to
our prior written consent, include documents or information achieve outcomes or results for such clients that adversely
we provide to you in any filings with federal or state securities affect you or your industry (often without our knowledge),
regulators, including the SEC. It is our policy that the person You agree that the engagement of the Firm for the legal
or entity that we represent is the person or entity that is services contemplated herein does not, in and of itself,create
identified in our Engagement Letter and does not include any a conflict of interest or ethical violation by virtue of our
affiliates of such person or entity, unless specifically referred lobbying activities. We further do not undertake or assume
to in the accompanying letter. It is also our policy that the any duty to advise you as to what clients or positions we
attorney-client relationship will terminate upon our completion have undertaken in a lobbying role which would be
of any services that you have retained us to perform. detrimental to you or your industry.
Approach to Providing Services. Each client is served by Potential Conflicts. Because we represent many other
a client relationship attorney (the "Client Relationship companies and individuals, it is possible that during the time
Attorney"). The Client Relationship Attorney should be that we are representing you, some of our present or future
someone in whom you have confidence and with whom you clients may become involved in transactions or disputes with
enjoy working; you should assume the attorney sending the you. You agree that we may continue to represent or may
Engagement Letter is the designated Client Relationship undertake in the future to represent existing or new clients in
Attorney. You are free to request a change of Client any matter that is not substantially related to our work for you
Relationship Attorney at any time. Subject to the supervisory even if the interests of such clients in those other matters are
role of the Client Relationship Attorney,the work or parts of it directly adverse. We agree, however, that your prospective
may be performed by other lawyers and support personnel in consent to conflicting representation shall not apply in any
the Firm. If you are concerned about our performance or the instance where, as a result of our representation of you, we
performance of the Client Relationship Attorney, you may call have obtained proprietary or other confidential information of
our Chief Executive Officer at 214.745.5400,or our Executive a nonpublic nature, that, if known to such other client, could
Director at 214.745.5400. be used by such client to your material disadvantage.
Additional Services We Provide. We frequently offer Advice about Possible Outcomes. We may express
business services, many at no charge, that provide opinions or beliefs concerning this matter or various courses
significant value to our clients and friends. For example,we of action and the results that might be anticipated. Any such
provide advisories and seminars that offer timely insights and statement made by any lawyer of our Firm is intended to be
legislative updates on a variety of issues. Information an expression of opinion only,based on information available
received through these advisories and seminars is not to be to us at the time, and should not be construed as a promise
considered as legal advice for any particular legal matter. or guarantee.
Services We Expressly Do Not Provide. Members of our Client Responsibilities. You agree to pay our invoice for
law firm are from time to time serving in elected or appointed services and expenses as explained below. In addition, you
positions with various governmental or regulatory bodies. agree to be candid and cooperative with us and to keep us
Members of our law firm must discharge those duties without informed with complete and accurate factual information and
regard to their employment or association with the Firm, and documents relevant to our representation.
more importantly, it would be a prohibited conflict of interest
for them to give any special consideration, benefit, or access Fees. We will bill you on a regular basis, normally each
to you or any other client of the Firm. Accordingly, you month, for fees, disbursements and charges. You agree to
acknowledge and confirm that this engagement of the Firm is make payment upon receipt of invoice unless other billing
not in consideration for or in contemplation of any expected arrangements have been agreed to in writing. Moreover,you
benefit to be derived from the activities of any elected or agree that your obligation to pay our fees is not dependent
appointed official. on the outcome of our legal representation.
You also understand that, in the course of such public The principal basis for computing our fees will be the amount
service, these persons may be called upon to take positions, of time spent on the matter by various lawyers and legal
assistants multiplied by their individual hourly billing rates. days of the date of the invoice, we may apply the retainer to
Our billing rates are subject to change from time to time. We those unpaid bills. At the conclusion of our legal
are often asked to estimate the amount of fees and costs representation,the remaining balance will be returned to you,
likely to be incurred in connection with a particular matter. If If the retainer deposit proves insufficient to cover current
we provide an estimate, it should not be construed as a expected fees, expenses and charges, it may have to be
maximum or fixed-fee quotation. The ultimate cost frequently increased. Any understanding regarding a retainer deposit,
is more or less than the amount estimated. In undertaking which is inconsistent with the foregoing, must be expressly
representation of a client on a contingent fee basis, any such confirmed in the engagement letter or subsequent written
contingent fee arrangement must be reflected in a written communication from us.
contingent fee agreement.
Retainer deposits which are received to cover specific cost
If you disagree with the fees or expenses on any invoice, items will be disbursed as provided in our agreement with
please contact the Client Relationship Attorney or our you, and you will be notified from time to time of the amounts
Executive Director immediately. If you do not report a applied or withdrawn. Any amount remaining after
concern about the fees to us within 60 days after receipt of disbursement will be returned to you.
an invoice, then it will be presumed that the fees were
reasonable and the services provided were necessary. We All retainers and clients' funds are held in clients' funds
will give you prompt notice if your account becomes accounts in trust for your benefit at financial institutions in
delinquent more than 30 days beyond the date of the invoice, Texas. If the deposit, whether it be a retainer or other
and you agree to bring the account or the retainer deposit amount which we will hold for you, represents a significant
current. If the delinquency continues and you do not arrange amount and/or will be held for a long period of time,you may
satisfactory payment terms, we may terminate the request that the deposit be placed in a segregated interest-
representation. In litigation matters,our ability to terminate or bearing account. When the funds are small or are to be held
withdraw from the case may be subject to court approval. for only a short period of time, it is our practice to place the
We reserve the right to pursue collection of any unpaid funds in a pooled account (which does not earn interest)
balance of your account. You agree to pay the costs of maintained in accordance with State Bar of Texas rules.
collecting the debt, including court costs, filing fees and a Unless you instruct us otherwise, we will follow the above
reasonable attorney's fee. practices with respect to client funds held on your behalf.
Disbursements and Charges. We will charge our clients Termination of Engagement. You may at any time
not only for legal services rendered, but also for other terminate our services and representation upon written notice
ancillary services provided. Examples include charges for in- to the Firm. Such termination shall not, however, relieve you
house messenger deliveries, computerized research of the obligation to pay for all services already rendered,
services, and the use of our facsimile, laser printing, and including work in progress and remaining incomplete at the
photocopy machines. While our charges for these services time of termination, and to pay for all expenses incurred on
are measured by use,they do not, in all instances, reflect our your behalf through the date of termination.
actual out-of-pocket costs. While we are constantly striving
to maintain these charges at rates that are lower than those We reserve the right to terminate our representation of you at
maintained by others in our markets, in some instances the any time by providing advance written notice to you. If
amounts charged may exceed the actual costs to the Firm. permission for withdrawal is required by a court or arbitration
The current charges for some typical additional services are panel, we will promptly request such permission, and you
as follows: agree not to oppose our request.
Standard Duplication $.18 1page" Conclusion of Representation: Retention and
Facsimile $1.00/page" Disposition of Documents. Unless previously terminated,
Messenger, Postage,Westlaw/Lexis At cost** our representation of you with respect to the agreed upon
scope of representation will terminate upon sending you our
*These charges represent our best estimate of our final statement for services rendered. Following such
actual direct cost incurred for material, manpower, and termination, any otherwise nonpublic information you have
equipment usage. Oversized and other unusual supplied to us, which is retained by us, will be kept
duplication may be charged at a higher rate. confidential,', in accordance with applicable rules of
professional conduct. Your papers and property will be
**Cost is determined using standard rate scales of the returned to you upon receipt of payment for outstanding fees,
vendors of these products. expenses and charges unless a court orders otherwise. We
may retain our own files, including lawyer work product,
We may disburse funds on your behalf for filing fees, pertaining to the representation. For various reasons,
overnight deliveries, necessary travel and other including the minimization of unnecessary storage expenses,
miscellaneous items as required to complete the scope of our we reserve the right to destroy or otherwise dispose of any
services. We will bill you at actual cost for these types of documents or other materials retained by us after the
expenses. We may also submit bills and invoices to you for termination of the engagement.
payment to vendors directly.
Unless you actually engage us after the closing to provide
Retainer and Clients' Funds. If the attached letter requires additional advice on issues arising from this representation,
the payment of a retainer, you grant us a security interest in we have no continuing obligation to advise you with respect
the retainer deposit. Unless otherwise agreed, the retainer to future legal developments,
deposit will be credited toward your unpaid invoices,if any,at
the conclusion of services. If our bills are not paid within 30
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A Resolution
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NO. 4440-04-2015
I
AUTHORIZING THE EMPLOYMENT OF GRETA E. COWART
OF THE LAW FIRM OF WINSTEAD, PC, AS OUTSIDE LEGAL i
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 j
AUTHORIZING PAYMENT OF COUNSEL FEES IN AN AMOUNT
NOT TO EXCEED $20,000.00
i
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 i
Care Act"); and
WHEREAS, the Affordable Care Act includes employer-mandated reporting requirements and j
penalties that affect municipalities; and
i
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;
i
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS, THAT:
I
1. The City is authorized to retain Greta E. Cowart of the law firm of I
Winstead, PC, as outside counsel under Chapter VI, Section 3 of the City
Charter, for legal services related to advising the Human Resources Department I
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
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ORTWORT I
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Resolution No.4440-04-2015 I
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.
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M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORT W0RTl1
COUNCIL ACTION: Approved on 4/21/2015 - Resolution No. 4440-04-2015
REFERENCE ** 12RETAIN LEGAL COUNSEL
DATE: 4/21/2015 NO.: C-27268 LOG NAME: FOR HEALTH AND WELFARE
BENEFIT PLANS
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: 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)
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_review.asp?ID=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
Submitted for City Manager's Office by: Susan Alanis (8180)
Originating Department Head: Sarah Fullenwider (7606)
Additional Information Contact: 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