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HomeMy WebLinkAboutResolution No. 2017-03 i f RESOLUTION NO. R2017-03 A RESOLUTION OF THE CITY COUNCIL OF THE CITY i OF FRIENDSWOOD, TEXAS, APPROVING AN AGREEMENT / ENGAGEMENT LETTER FOR JOINT DEFENSE REPRESENTATION AND/OR OF ASSERTION OF CLAIMS BY AND AMONG THE CITY OF FRIENDSWOOD, TEXAS, THE CITY OF PASADENA, TEXAS AND VARIOUS OTHER POLITICAL SUBDIVISIONS; AND REPEALING ALL OTHER RESOLUTIONS INCONSISTENT OR IN CONFLICT c HEREWITH. i i i Whereas, on or about February 9, 2000, the cities of Friendswood, Texas and Pasadena, } Texas and various other political subdivisions ("Co-Participants") entered into that certain"Cost Sharing Agreement Southeast Water Purification Plant (Restated and Amended)" with the City i of Houston, as amended by that certain "Amendment to Cost Sharing Agreement Southeast f Water Purification Plant (Restated and Amended)" dated on or about August 21, 2007, by and among the same parties (collectively,the Cost Sharing Agreement"); and i Whereas, the Cost Sharing Agreement provides a mechanism for the City of Houston, as Managing Participant, to audit the operations of the Southeast Water Purification Plant on an annual basis and to provide a proposed annual budget for consideration of approval along with assessing "true-up" costs against the Co-Participants on a pro-rata basis dependent on the respective usage of the Co-Participants; and i Whereas, the City of Houston has provided said proposed budgets which portions of i each budget are under protest for Fiscal Years 2016 and 2017, and in process to assess true-up costs against the Co-Participants for, among other things, operation and maintenance expenses i I I i Whereas, the Co-Participants wish to pool their resources in an effort to defend and/or assert claims against the City of Houston and in order that appropriate legal and financial f k representation may be secured to advise and represent the interests of the Co-Participants; k i NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF j FRIENDSWOOD, TEXAS: i I Section 1. The City Council of the City of Friendswood, Texas, hereby authorizes the Mayor to enter into an Agreement / Engagement Letter for Joint Defense Representation and/or I I Assertion of Claims. A true and correct copy of the proposed Agreement / Engagement Letter k f for Joint Defense Representation and/or Assertion of Claims is attached hereto as Exhibit "A" and made a part hereof for all purposes. I Section 2. The City Council of the City of Friendswood, Texas hereby further r resolves that in no event shall the appropriation of funds by the City of Friendswood in connection with the Agreement / Engagement Letter for Joint Defense Representation and/or Assertion of Claims exceed the sum of$25,000.00 without further approval of the City Council. Section 3. All resolutions or parts of resolutions inconsistent or in conflict herewith I I are,to the extent of such inconsistency or conflict, hereby repealed. i PASSED,APPROVED,AND RESOLVED this the 9th day of Januarv,2017. Kevin M. Ho a d t Mayor ATTEST: ••'"''• ' FRI /v •• ' / YI °° •°q •Q i ®�, • r P v ° Melinda Welsh, TRMC p a • City Secretary t1 ' '• 4F sa '. ° C 0F �C e a s a a oil o° i 82017-03 2 i P.M.Schenkkan 512.480.5673 GRAVES DOUGHERTY HEARON & MOODY pschenkkan@gdhm.com (fax) pschenkkan @gdhm.com i A PROFESSIONAL CORPORATION MAILING ADDRESS: P.O.Box 98 Austin,TX 78767-9998 December 12, 2016 �r City of Friendswood Patrick Donart, Public Works Director 910 South Friendswood Drive Friendswood, Texas 77546 Re: Fee Agreement and Engagement Letter Dear Mr. Donart: 1. Scope. This Fee Agreement and Engagement Letter, if accepted, will serve as the agreement by which Graves, Dougherty, Hearon & Moody, P.C. ("GDHM") will represent the City of Friendswood in connection with its interest in the Cost Sharing Agreement ("SEWPP Agreement") for the Southeast Water Purification Plant("SEWPP") between the City of Houston and the City of Pasadena., Gulf Coast Water Authority, Clear Lake City Water Authority, Clear Brook City Municipal Utility District, La Porte Area Water Authority, Harris County Municipal Utility District No. 55, City of South Houston, City of Webster, City of Friendswood, and Baybrook Municipal Utility District No. 1 ("Co-Participants"), and the City of League City, City of Nassau Bay, City of Pearland, and City of Seabrook("Non Co-Participants"). 2. Joint Representation. Pursuant to this engagement and the Joint Representation Agreement executed by the City of Friendswood and the Co-Participants and Non Co- Participants to the SEWPP Agreement, GDHM will jointly represent the Co-Participants and Non Co-Participants in any disputes with the City of Houston or proceedings related to the rates charged under the SEWPP Agreement. GDHM is not aware of any conflict or competing interests among any of the Co-Participants and Non Co-Participants that would preclude GDHM from representing the Co-Participants and Non Co-Participants jointly in this matter under Texas Disciplinary Rules of Professional Conduct ("Disciplinary Rules") Rule 1,06, and GDHM is not aware of any reason that the joint representation of the Co-Participants and Non Co-Participants is likely to present any conflicts among the Co-Participants and Non Co-Participants. 3. Fees. The City of Pasadena has agreed to pay, on behalf of all Co-Participants and Non Co-Participants, attorneys' fees and expenses incurred in the representation of Co-Participants and Non Co-Participants, including the City of Friendswood, by GDHM. It is our understanding that the City of Pasadena will arrange for the distribution of these costs among the Co- Participants and Non Co-Participants. In the event that the City of Friendswood becomes represented by any attorney other than GDHM, with the exception of Mr. Ron Freeman of Freeman& Corbett, or any successor in interest, the City of Friendswood shall be responsible for payment of its own attorneys' fees for such separate counsel. 401 Congress Avenue Suite 2200 Austin,Texas 78701 512.480.5600 www.gdhm.com I i City of Friendswood Patrick Donart December 12, 2016 Page 2 GDHM will charge fees for services based on time spent by lawyers and legal assistants working on this representation, at hourly rates that vary based on the experience and expertise of j the person performing the work. Hourly rates for our lawyers currently range from $200 per hour to $550 per hour. The hourly rates for our legal assistants currently range from $100 per hour to $145 per hour. We revise our standard hourly fee schedule from time to time, and typically every year. Pete SchenU,-an, Andrea Stover, Robin Melvin, and Natasha Martin will be the attorneys primarily responsible for the general engagement. The hourly rates for these j lawyers are $495.00, $375.00, $410.00, and $260.00 respectively through December 31, 2016, and will be $495.00, $425.00, $410.00, and $280.00 as of January 1, 2017, respectively. In addition to fees, GDHM will charge for reimbursement of expenses it incurs in this representation. For disbursements of$500.00 or more, GDHM may request that the supplier of the goods or services bill the City of Pasadena directly. All statements for fees incurred in this representation will be directed to the City of Pasadena at the following mailing or email addresses: City of Pasadena Robin Green, Jr., Director of Public Works 1211 S outhmore Pasadena, TX 77502 rgreen @ci.pasadena.tx.us GDHM will keep records of its time and expenses, and will normally send a statement each month to the City of Pasadena, or at such other frequency as may be convenient, showing fees for work done during the previous period, plus reimbursable expenses that were paid during the previous period. The City of Pasadena agrees to make payment promptly following receipt of each statement by means of checks or drafts payable to "Graves, Dougherty, Hearon & Moody, P.C." If any statement remains unpaid for more than 30 days GDHM may, consistent with ethical obligations and applicable judicial requirements, cease performing services until satisfactory arrangements for payment have been made. The City of Friendswood agrees to notify GDHM of any changes to the contact information for the Director of Public Works or the City of Pasadena as soon as that information becomes available to the City of Friendswood. 4. Other GDHM clients. This engagement restricts GDHM's future ability to take a position adverse to the City of Friendswood in any related legal matter. GDHM represents a broad base of clients in a wide variety of legal matters. As a result, it is possible that in a future legal matter unrelated to this engagement, the City of Friendswood could be in a position adverse to another GDHM client. The City of Friendswood agrees that GDHM may represent other clients whose interests are adverse to the City of Friendswood's interests, including in litigation, business negotiations, transactions or other legal matters, provided such other representation (i) is not substantially related to GDHM's representation of the City of Friendswood in this engagement and (ii) would not result in GDHM's use, on behalf of another client, of any confidential information or data which is made available to GDHM during this engagement. City of Friendswood Patrick Donart December 12, 2016 Page 3 5. Document retention. GDHM has a document retention policy with respect to client files. Subject to certain exceptions, once a file is closed in a particular matter, it is GDHM's general policy to retain the file for a minimum of ten years, after which time it may be destroyed. We will share the specifics of GDHM's client file retention policy upon request. 6. Litigation. As this matter may involve litigation, please note that the City of Friendswood has strict legal obligations to preserve relevant information, including halting the automatic operation of document destruction processes, such as the routine deletion of emails and other electronic files. By signing this engagement letter, the City of Friendswood agrees to take immediate, reasonable and necessary steps to ensure that documents (including electronic or anticipated litigation made the subject of this Information) relating to any ongoing p g J representation are preserved and not destroyed, and to notify us if it believes that any relevant information has been lost or destroyed. Our attorneys and litigation technology staff are available to answer questions and provide assistance in this regard. 7.. Communication. GDHM takes pride in maintaining good working relationships with our clients. If the City of Friendswood becomes dissatisfied with any aspect of GDHM's representation, please bring it to our attention immediately. It is our belief that most problems can be resolved by a fratik and good faith discussion between us. will. The City of Friendswood may terminate this engagement by written 8. Terminable at notice at any time. GDHM reserves the right to withdraw from this engagement, subject to our ethical obligations and applicable judicial requirements. Otherwise, this engagement will terminate upon the completion of the legal services described above, or at the completion of any new matter, 9. Miscellaneous. In the event of any dispute under or concerning this letter agreement or the representation by GDHM of the City of Friendswood, the exclusive venue for any litigation shall be in'Travis County, Texas. To confirm our a g reement to these terms of GDHM's representation, please have the appropriate persons sign on behalf of the City of Friendswood and return a copy of this letter to us. If this letter_ does not accurately describe the terms of this engagement and the services that the City of Friendswood believes GDHM has agreed to provide, please notify me immediately. A copy of this letter should be retained in the City of Friendswood's files. Please contact me promptly if the City of Friendswood has any questions about this letter or any other aspect of GDHM's engagement in this matter. City of Friendswood Patrick Donart December 12, 2016 Page 4 Sincerely, GRAVES, DOUGHERTY, HEARON & MOODY, A Professional Corporation Pete Schenk-kai%t r AGREED AND ACCEPTED: ATTEST Cit of Friendswood By. M Wow Kevin l�!!. Holland Melinda Welsh, TR wO.. Mayor City Secretary 4 •°° ♦' ° Its: 0�q • r Date: 1 /9/17 . OF *Per Resolution 2017-03, fees not to exceed $25, 000 without further City Council authorization. I� t i SEWPP JOINT REPRESENTATION AGREEMENT WHEREAS, City of Pasadena, Gulf Coast Water Authority, Clear Lake City Water Authority, Clear Brook Municipal Utility District, La Porte Area Water Authority, Harris County Municipal Utility District No. 5, City of South Houston, City of Webster, City of Friendswood, and Baybrook Municipal Utility District No. 1 ("Co-Participants") are all parties to the Cost Sharing Agreement ("SEWPP Agreement") for the Southeast Water Purification Plant i ("SEWPP") with the City of Houston, and City of League City, City of Nassau Bay, City of Pearland, and City of Seabrook ("Non Co-Participants") are not parties to the SEWPP Agreement but are directly affected by it; i WHEREAS, each of the Co-Participants and Non Co-Participants has executed a Fee Agreement and Engagement Letter in connection with the SEWPP Agreement, the terms of which are incorporated herein by reference and will continue to remain in effect from and after the execution of this Joint Representation Agreement("Agreement"); WHEREAS, each of the Co-Participants and Non Co-Participants has retained Ronald J. i Freeman and desires to also retain Graves, Dougherty, Hearon &Moody, P.C. ("Counsel")to act as Counsel with.regard to the rights and obligations of the Co-Participants under the SEWPP I Agreement and the interests of the Non Co-Participants in that agreement; 4 `f f WHEREAS, each of the Co-Participants and Non Co-Participants acknowledges and I agrees that with respect to the SEWPP Agreement, they have separate but common interests and concerns; WHEREAS, each of the Co-Participants and Non Co-Participants holds the same position on various issues related to the SEWPP Agreement and has concluded that its common interests SEWPP Joint Representation Agreement Page 1 of 5 i will be best served, and the provision of legal advice to each Co-Participant and Non Co- Participant will be facilitated, by and through the sharing of information and legal advice (both written and oral) among Co-Participants and Non Co-Participants on a confidential and privileged basis; and WHEREAS, each of the Co-Participants and Non Co-Participants acknowledges and agrees that it desires and intends by this Agreement that the common-interest privilege, as broadly as possible, attach to its conversations, communications, and shared information, in connection with its interests in the SEWPP Agreement. NOW THEREFORE, it is mutually agreed as follows: 1. Based upon all facts presently known, each Co-Participant and Non Co- Participant believes that the City of Houston's actions are in violation of the SEWPP Agreement and its claims and positions are unmeritorious. No Co-Participant or Non Co-Participant perceives or is aware of any present existing or potential conflict or competing interests between or among any two or more of the Co-Participants and Non Co-Participants with respect to the i representation related to the SEWPP Agreement. Each Co-Participant and Non Co-Participant acknowledges that it may now or in the future retain separate counsel if it desires to do so. 2. Each Co-Participant and Non Co-Participant agrees to give notice to Counsel and i each other immediately at any time it perceives that any actual or perceived conflict between or among any two or more of the Co-Participants or Non Co-Participants arises. Each Co- Participant and Non Co-Participant agrees that, upon receipt of such a notice, Counsel will investigate and advise all Co-Participants and Non Co-Participants whether, in Counsel's opinion, continued representation of all Co-Participants and Non Co-Participants would, in the SEWPP Joint Representation Agreement Page 2 of 5 absence of waivers, be improper under Texas Rule of Professional Conduct 1.06(e) and, if so, whether the conflict is waivable. If, in Counsel's opinion, the conflict .is waivable, each Co- Participant and Non Co-Participant will be asked to waive the conflict. If all Co-Participants and Non Co-Participants waive the conflict, Counsel will continue.this joint representation. If not, i Counsel will withdraw from this joint representation as to all Co-Participants and Non Co- Participants. j 3. Counsel will not assert on behalf of the individual Co-Participant and Non Co- Participant any position that Counsel believes is inconsistent or in conflict with the i representation of all Co-Participants and Non Co-Participants. Each Co-Participant and Non Co- Participant acknowledges that, if any of the Co-Participants or Non Co-Participants wishes to i assert in its own behalf any position that is inconsistent or in conflict with a position asserted on behalf of all Co-Participants and Non Co-Participants, it must retain separate counsel. Each Co- Participant and Non Co-Participant agrees that, if any Co-Participant or Non Co-Participant j I i asserts any position in its own behalf that is inconsistent or in conflict with a position asserted on behalf of any of the Co-Participants or Non Co-Participants, Counsel may withdraw from representing any or all of the Co-Participants and Non Co-Participants and continue to represent ! I i the remaining Co-Participants and Non Co-Participants. 3 I i 4. Each Co-Participant and Non Co-Participant agrees that attorney-client communications with regard to each Co-Participant and Non Co-Participant may be disclosed in i 3 7 the course of representation to and among all other Co-Participants and Non Co-Participants, during or after representation; and each Co-Participant and Non Co-Participant further agrees not ! i SEWPP Joint Representation Agreement Page 3 of 5 + I to disclose any such attorney-client communications except as provided in this paragraph, and to maintain the privilege of attorney-client communication. 5. If any Co-Participant or Non Co-Participant becomes adverse to any other Co- Participant or Non Co-Participant in related matters, then attorney-client communications with I regard to any Co-Participant or Non Co-Participant disclosed in the course of this representation are no longer attorney-client privileged communications. i E 6. Each Co-Participant and Non Co-Participant acknowledges that it has freely chosen to execute this Agreement without any encouragement or solicitation, and that no other E representations have been made regarding this joint representation of Co-Participants and Non i Co-Participants other than those set out in this Agreement. i 7. A copy of this Agreement may be executed by each Co-Participant and Non Co- Participant, separately, and when each Co-Participant and Non Co-Participant has executed a copy, such copies taken together shall be deemed to be the full and complete Agreement among ' the Co-Participants and Non Co-Participants. c GRAVES, DOUGHERTY, HEARON & MOODY, A Professional Corporation r B y f I ' f Pete S chenkkan i i E {Additional Signature Page Follows} i ,f SEWPP Joint Representation Agreement Page 4 of 5 i i i AGREED AND ACCEPTED BY CO-PARTICIPANTS: City of Pasadena Harris County Municipal Utility District By: No. 5 Its: By: Date: Its: Date: Gulf Coast Water Authority City of South Houston By: By: Its: Its: Date: Date: Clear Lake City Water Authority City of Webster By: By: Its: Its: Date: Date: Clear Brook Municipal Utility District City of Friendswood - A By: By: x " Its: Its: i Date: Date: 1./9/17 La Porte Area Water Authority Baybrook Municipal Utility District No. 1 By: By: Its: Its: Date: Date: AGREED AND ACCEPTED BY NON CO-PARTICIPANTS: City of League City City of Pearland By: By: Its: Its: Date: Date: City of Nassau Bay City of Seabrook i By: By: Its: Its: Date: - Date: i i SEWPP Joint Representation Agreement Page 5 of 5 I