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HomeMy WebLinkAboutResolution - 2005-R0152 - Amendment To Agreement - Winstead Consulting Group LLC - Water Issue Consulting - 04_14_2005KeSOMUOU 1V0. LUU21-RU121l April 14, 2005 Item 17 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Amendment to the Agreement with Lynn Sherman, dated January 13, 2005, Resolution No. 2005-R0006, for professional services, and any associated documents, acknowledging the assignment of the legislative consulting contract to Winstead Consulting Group, L.L.C. and authorizing additional services related to the protection of the City of Lubbock's current and future water resources. Said Amendment to Contract for professional services is attached hereto and which shall be spread upon the minutes of this Council and shall constitute and be a part hereof as if fully copied herein and detailed. Passed by the City Council this 14th day ATTEST: Rebecca Garza, City Secretary APPROVED AS, TO CONTENT: u Ches Carthel, Water Planning Manager PROVED AS TO FORM: Anita Burgess, City Attorney ml/ccdocs/Res. LynnSherman March 15, 2005 Resolution No. 2005—RO152 INSTEAD CONSULTING GROUP March 2, 2005 direct dial: 512.370.2877 Isherman@winstead.com Ms. Anita Burgess City Attorney City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Re: Engagement of Winstead Consulting Group, L.L.C. by the City of Lubbock Dear Ms. Burgess: Winstead Consulting Group, L.L.C. ("WCG") greatly appreciates the City of Lubbock's ("City's") continuing interest in the engagement of WCG's services. As you are aware, Lynn Sherman joined WCG after the attached engagement letter ("Initial Engagement Letter") between Lynn Sherman and the City, dated January 6, 2005, was executed and approved by City Council Resolution No. 2005-R0006 on January 13, 2005. As reflected in the attached assignment and assumption agreement, dated March 3, 2005 ("Assignment"), Lynn Sherman has since assigned the Initial Letter of Engagement and all his rights thereunder to WCG, and all of his obligations thereunder have been assumed by WCG. The Initial Engagement Letter and the Assignment are incorporated herein for all purposes, and Lynn Sherman's assignment of the Initial Engagement Letter to WCG, and WCG's assumption of Lynn Sherman's obligations thereunder, are herein and hereinafter acknowledged, ratified, and approved. WCG will receive direction from the Mayor and/or the Deputy City Manager in setting priorities and coordinating work. As in all city affairs, ultimate authority rests with the City Council regarding direction and control. In addition to the engagement of services memorialized in the foregoing documents, WCG very much appreciates the City's interest in engaging additional services of WCG, and, to that extent, the aforementioned Initial Engagement Letter (as assigned to WCG in the Assignment) is amended, at the City's request, to include the provision of legal, legislative, and other consulting services to the City regarding the strategic implementation of directives and recommendations of SUITE 2100 PH 512,370.2898 WINSTEAD CONSULTING GROUP Austin, Washington DC 401 CONGRESS AVENUE FAX 512.370.2850 A Limited Liability Company AUSTIN, TEXAS 78701 1 WINSTEADCG.COM March 2, 2005 Page 2 the Lubbock City Council, the City's Water Advisory Board, the City's strategic Water Plan, and other water resource related master plans, including negotiations with the Brazos River Authority, negotiations regarding water supplies and their development, the development of water and wastewater infrastructure, and the transfer of any water supply related permits. Hereinafter, the Initial Engagement Letter, the Assignment, and this letter shall be referred to collectively as the "Engagement Letter." As a component of the engagement as a consultant to the City, WCG anticipates that it will be necessary to engage attorneys with Winstead Sechrest & Minick P.C. ("Law Firm") to provide legal services to and on behalf of the City, and it is acknowledged that a separate engagement letter for such legal services will be submitted for City Council consideration and approval at its next duly called and noticed meeting. As a matter of company policy, it is required that WCG provide you with this Engagement Letter to set out the terms and provisions of WCG's engagement, including Standard Terms of Engagement for Winstead Consulting Group, L.L.C. that are attached hereto and incorporated herein. Specifically, the following terms and provisions will apply to this Engagement Letter: In addition to the monthly retainer set forth in the Initial Engagement Letter, WCG will charge an additional flat fee retainer of $3,000 a month for the consulting services specified in the third paragraph above for March 1, 2005 through December 31, 2005 (the "Agreement Period"). Separate fees for legal services rendered shall be calculated and billed on an hourly basis under the above -referenced law firm engagement letter which will be presented to the City Council at its next duly called and noticed meeting. Relative to any such hourly fees for legal services, Lynn Sherman will not charge any hourly fee for legal services without prior authorization from the City. In addition to the retainers and hourly fees described above, the City will be responsible for WCG's regular charges and expenses incurred in connection with this engagement, as set forth in the Standard Terms of Engagement. WCG agrees to receive prior approval from the City for any single charge or expense in excess of $500, or accumulation of charges and expenses in any single calendar month in excess of $1,000. WCG will provide the City with an invoice for services, expenses, and charges as soon as possible following the end of each calendar month until such time as the engagement is completed. Each such monthly invoice shall include an invoice for any legal services provided by Law Firm under the above -referenced law firm engagement letter which will be presented to the City Council at its next duly called and noticed meeting. Additionally, as a part of such invoice, WCG will provide the City with a detailed statement for expenses as soon as possible following the end of each calendar month until such time as the engagement is completed. WCG will endeavor to deliver these statements to the City on or about the lot' day of the month following the month in which the fees March 2, 2005 Page 3 and expenses were incurred. Payment of the amount reflected on each statement is due upon the City's receipt thereof. Again, let me thank the City of Lubbock for allowing WCG to be of service in connection with this engagement. If the provisions hereof meet with your approval, please so indicate by signing and returning the following to me in the enclosed self-addressed, stamped envelope: 1) the executed original of this letter; and 2) the executed original of Assignment. Counterparts of these two documents are enclosed for your files. Very truly yours, WINSTEAD CONSULTING GROUP, L.L.C. AGREED T AN ACCEPTED: Dated: S'' `oS WINSTEAD CONSULTING GROUP Standard Terms of Engagement for Services Introduction This statement contains the standard terms of our engagement. Unless modified in writing by mutual agreement, these terms will be an integral part of the letter to which this statement is attached (collectively, "Engagement Letter"). Therefore, we ask that you review this statement 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 scope of services we will provide is described in the accompanying letter. Any questions that you have should be addressed to us immediately. We will at all times act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of the representation are expressions of our best professional judgment, but are not guarantees. Such expressions are necessarily limited by our knowledge of the facts and are based on the state of the situation at the time they are expressed. 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 (i.e., if you are a corporation or partnership, affiliates include any parents, subsidiaries, employees, officers, directors, shareholders or partners of the corporation or partnership, or commonly owned corporations or partnerships; or, if you are a trade association, affiliates includes any members of the trade association). It is also our policy that relationship will be considered terminated upon our completion of any services that you have retained us to perform. If you later retain us to perform additional services, our relationship will be revived subject to these terms of engagement, as they may be supplemented at that time. You agree to cooperate fully with us and to promptly provide all material information known or available to you relevant to our representation. Potential Conflicts You should be aware that 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 undertake 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 contained in the preceding sentence 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 in any such other matter by such client to your material disadvantage. You should know that, in similar circumstances with many of our other clients, we have asked for similar agreements to preserve our ability to represent you. You agree that our representation of you in this matter does not give rise to a relationship between us and any of your affiliates, unless specifically set forth herein. You also agree that during the course of our representation of you, we will not be given any confidential information regarding any of your affiliates unless you believe it necessary to do so. In such circumstances, you agree to identify such information as being confidential and discuss your reasons for revealing it with us prior to disclosing the information. Accordingly, in most instances, representation of you in this matter will not give rise to any conflict of interest in the event other clients are adverse to any of your affiliates. Services We Expressly Do Not Provide to You Winstead is a wholly -owned subsidiary of Winstead Sechrest & Minick P.C. (Winstead Sechrest & Minick P.C. and Winstead being hereinafter collectively referred to as the "Firm") and members of the Firm are from time to time serving in elected or appointed positions with various governmental or regulatory bodies at the federal, state, county, municipal, or local level. Such service could include, but is not limited to, service in the United States Congress, the Texas Legislature, as a board member of a State of Texas agency, board, or commission or the executive branch of state government, as a county commissioner, mayor, city council member, alderman, as a member of a planning and/or zoning board in charge of land use and entitlement issues, or a board of adjustment or variance. Members of the 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 by virtue of your engagement of Winstead in any capacity, including the actual lobbying of any such governmental body or agency. Accordingly, you acknowledge and confirm that this engagement of Winstead is not in consideration for or in contemplation of any expected benefit to be derived from the activities of such persons in elected or appointed positions. 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 actual or perceived business interests and you acknowledge that such events are not conflicts of interest or ethical violations of Winstead'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 could adversely affect you or your industry (often without our knowledge) and your engagement of Winstead for the 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 to represent in any lobbying role or engagement or any duty to explore with you those issues of interest to you or March 2, 2005 Page 5 your industry, that if taken or advocated by us on behalf of our lobby clients, would be detrimental to you or your industry. Billing Arrangements and Terms of Payment We will bill you on a regular basis, normally each month, for both fees and disbursements. You agree to make payment within 30 days from the date 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 on the outcome of our representation. We will give you prompt notice if your account becomes delinquent, 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. 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 Typically, we will charge our clients not only for consulting 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. For many of these items, the true cost of providing the services is difficult to establish. 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 $.18/page* Facsimile $1.00/page* Messenger, Postage, Computer Assisted Research At cost** Long Distance Telephone 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. In addition, we generally will 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. When disbursements are significant, we often request that you pay the vendor direct. If you would prefer, in some situations we can arrange for ancillary services to be provided by third -parties with direct billing to you. Fees and expenses of others, such as governmental verification, lien searches, consultants, appraisers and local counsel, are required to be paid directly by you unless agreed otherwise. Ending Your Relationshin with Us You may terminate our representation at any time, with or without cause, by notifying us. If we terminate the engagement, we will take such steps as are reasonably practicable to protect your interests with respect to the scope of our representation. 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 and costs unless a court orders otherwise. We will retain our own files, including 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 five years after the termination of the engagement. Lynn Sherman 1804 Vista Lane Austin, Texas 78703 lsherman a( ,,watertexas.com 512431-6515 (mobile) January 6, 2005 Ms. Anita Burgess City Attorney City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Resolution No. 2005-R0006 January 13, 2005 Item No. 22 RE: Contract for consulting services on legislative issues pertaining to the City's water supplies and service from January 15, 2005 to December 31, 2005 Dear Ms. Burgess: We are excited to have the opportunity to assist and advise the City of Lubbock and its legislative advisors on issues pertaining to the City's water supplies and service. during the upcoming 79' Legislative Session. We look forward to working with City officials, staff, and other consultants on: i) the City's legislative initiatives pertaining to water; ii) monitoring, analyzing, and drafting Iegislation that impacts those initiatives; and iii) advising the City regarding the strategies and positions that it might pursue. We intend to keep representatives and officials designated by the City informed of important legislative activity as it occurs and to provide them with weekly overviews of pertinent legislative activity. The City of Lubbock is fortunate to be represented by Senator Robert Duncan, who has played in important role in Texas' water policy over the past few years. We will work closely with the Senator Duncan and the City of Lubbock's House delegation to further the City's interests. For services rendered from January 15 to December 31, 2005 (the "Agreement Period"), our fee will be $25,000, plus expenses. Such fee will be paid as follows: 1) $3,000 payable on or before January 20, 2005; and 2) beginning on February 1, 2005, $2,000 a month payable on or before the first day of such month. Non -travel expenses should not exceed $500 for the Agreement Period without further authorization from the City. Please contact me directly at 512431-6515 with any questions. Sincerely, r Signed this 13th day of January , 2005. ATTEST: A ""I KfARC NVDOU.6AL, MAYOR Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Dixon Platt, Council Chie of Staff APPROVED AS TO FORM: 011A Anita Burgess, City Attorney AB/Cityatt/[.ubbock lobby engagement letter_1 l .b.05 0 Resolution No_ 2005-R0006 January 13, 2005 Item No. 22 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement for consulting services on legislative issues pertaining to the City's water supplies and service from January 15, 2005 to December 31, 2005, by and between the City of Lubbock and Lynn Sherman, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 13th day of January _, 2005. //I X/// MARC D GAL, MAYOR ATTEST: Qj�� - - —) 11�� Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Council Cliief of Staff APPROVED AS TO FORM: Anita Burgess, City Attorney gs/ccdocsAgrmnt-Consulting Servs Water-Lynn.Shennan.res Jan 6, 2005 0 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is entered into effective as of the 3rd day of March, 2005, by and between Lynn Sherman ("Assignor") and Winstead Consulting Group ("Assignee"). RECITALS: WHEREAS, Assignor and the City of Lubbock are parties to that certain Letter Agreement (herein so called), dated January 6, 2005; and approved by City Council resolution No. 2005-R0006 on January 13, 2005. WHEREAS, Assignor desires to assign his rights and delegate his obligations under the Letter Agreement to Assignee. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Assignor hereby assigns, transfers and conveys to Assignee all of his rights and Assignee assumes all of Assignor's obligations under the Letter Agreement. This Assignment has been duly executed and delivered by Assignor and Assignee and shall be binding upon and inure to the benefit of Assignor and Assignee and its or his respective legal representatives, successors and assigns. This Assignment shall be construed and enforced in accordance with the laws of the state of Texas (without regard to the conflicts of law principles thereof) and will, to the maximum extent practicable, be deemed to call for performance in Travis County, Texas. IN WITNESS WHEREOF, this Assignment is executed effective as of the day and year first set forth above. ASSIGNOR: ASSIGNEE: Lynn Sherman WINSTEAD CONSULTING GROUP v-, ! By CONSENT The City of Lubbock hereby consents to the assignment by Lynn Sherman of his rights under the Letter Agreement to Winstead Consulting, and the assumption by Winstead Consulting of Lynn Sherman's obligations under the Letter Agreement. City of Lub ck By: Its: Ma