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RES 20-21-LCU018 ALL SIGNED LAS CRUCES UTILITIES BOARD RESOLUTION NO. 20-21-LCU018 A RESOLUTION APPROVING A SOLE SOURCE AGREEMENT WITH MCCARTER & ENGLISH, LLP, LAW FIRM SPECIALIZING IN THE ENERGY AND NATURAL GAS INDUSTRY FOR FISCAL YEAR 2020/2021, EFFECTIVE OCTOBER 1, 2020, FOR ONE (1) YEAR WITH FOUR (4) ONE-YEAR (1) RENEWALS SUBJECT TO APPROVED BUDGET APPROPRIATIONS AND ANNUAL RENEWALS. The Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces, is informed that: WHEREAS, on October 2, 2000, the City Council awarded a Sole Source Legal Services Contract to the law firm of Miller, Balis & O'Neil, P.C. ("MBO") in City Council Resolution No. 01-098; and WHEREAS, on March 13, 2014, the Las Cruces Utilities ("LCU") Board of Commissioners ("Board") approved the assignment of the Legal Services Contract with MBO to McCarter & English, LLP ("McCarter & English") in LCU Board Resolution No. 13-14-033, effective February 1, 2014, with John P. Gregg continuing as principal attorney at McCarter & English; and WHEREAS, on July 9, 2020, the LCU Board authorized the funding for Professional Legal Services under the existing contract and approved assignment with McCarter & English, specializing in the energy and natural gas industry, an amount up to $25,000.00 for Fiscal Year 2020/2021 ("FY21") under LCU Board Resolution No. 20-21-LC0004; and WHEREAS, the City of Las Cruces ("City") and the El Paso Municipal Customer Group ("EPMCG") both use the legal services of McCarter & English. EPMGC was created over 25 years ago by the City; Mesa, Arizona; and the Navajo Tribal Utility Authority when they each recognized the need to protect their common interests on the El Paso Natural Gas ("EPNG") pipeline in Federal Energy Regulatory Commission LCU FY20 06/20 Rev. 4 LCU Board Resolution No. 20-21-LCU018 Page 2 of 4 ("FERC") rate proceedings. EPMCG members now include the City; Deming, New Mexico; Socorro, New Mexico; Mesa, Arizona; Navajo Tribal Utility Authority: Benson, Arizona; Safford, Arizona; Duncan Rural Services Corporation; and the Graham County Utilities, Inc., also in Arizona; and WHEREAS, by participating in the EPMCG, the City keeps its costs manageable and continues to receive quality representation by a law firm that is a recognized expert in the energy and natural gas industry; and WHEREAS, McCarter & English has requested an increase in its standard partner hourly rate from $535.00 per hour to $565.00 per hour for work performed for the City on behalf of LCU, as a member of the EPMCG; and from $495.00 per hour to $525.00 per hour for work performed for the City individually, on behalf of LCU. Mr. Gregg explains that the rate increase is being delayed from October 1, 2020, to January 1, 2021, due to the pandemic; and WHEREAS, the hourly rate for McCarter & English non-partners will be lower and will vary according to experience. The hourly rate for law clerks, paralegal/legal assistants will remain at $125.00 - $175.00 per hour; the fees for copying, filing, and retrieving documents will also remain the same; and WHEREAS, pursuant to the 2000 Legal Services Contract, which has been assigned to McCarter & English, and the new Sole Source Professional Services Agreement the City, on behalf of LCU, only pays a portion of the McCarter & English legal costs incurred for the EPMCG, that portion is approximately 27.18%; and WHEREAS, City Utilities and Legal staff recommend the Board approve the Sole Source Professional Legal Services Agreement, which is substantially to form, and attached herein as Exhibit "A", with McCarter & English. LCU FY20 06/20 Rev. 4 LCU Board Resolution No. 20-21-LCU018 Page 3 of 4 NOW, THEREFORE, Be it Resolved by the Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces: (I) THAT the Sole Source Professional Services Agreement with McCarter & English, which is substantially to form, specializing in the energy and natural gas industry be approved effective October 1, 2020, for one (1) year with four (4) one- year (1) renewals subject to approved budget appropriations and annual renewals. (II) THAT the rate increase requested by McCarter & English for its standard partner hourly rate from $535.00 per hour to $565.00 per hour for work performed for the City on behalf of LCU, as a member of the EPMCG; and from $495.00 per hour to $525.00 per hour for work performed for the City individually, on behalf of LCU, be approved effective January 1, 2021. (III) THAT City staff is hereby authorized to do all deeds necessary in the accomplishment of the herein above. DONE AND APPROVED this 12t" day of November 2020. APPROVED: By Board Chair ATTEST: Secretary LCU FY20 06/20 Rev. 4 LCU Board Resolution No. 20-21-LCU018 Page 4 of 4 VOTE: Chair Little: Moved by Vice-Chair Archuleta: Commissioner Bencomo: Seconded by Commissioner Carmichael: Commissioner Hardee: Commissioner Johnson: Commissioner Sorg: APPROVED AS TO FORM: Sr. Assistant City Attorney LCU FY20 06/20 Rev. 4 EXHIBIT "A" City of Las Cruces PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into on this 12th day of November, 2020 effective as of October 1, 2020 by and between the Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces, New Mexico, hereinafter called "CITY", and McCarter & English, LLP, 1301 K Street, NW, Suite 1000 West, Washington, DC 20005, hereinafter called "CONTRACTOR". 1. PROJECT DESCRIPTION Contractor shall provide the legal services set forth in Exhibit "A" entitled "Scope of Services". These services are a continuation of services that CONTRACTOR is currently performing for the City. This Agreement replaces the assigned Legal Services Contract from Miller Balis & O'Neil, P.C. to McCarter & English, LLP approved in Las Cruces Utilities Board Resolution No. 13-14-033, and subsequent amendments to that Contract. The Legal Services Contract with Miller Balis & O'Neil was earlier approved in City Council Resolution No. 01-098 and, thereafter assigned to the Utilities Board by the City Manager effective January 1, 2008. 2. SCOPE OF SERVICES In a satisfactory and proper manner, the CONTRACTOR shall perform the legal services as set forth in Exhibit "A", attached hereto and made a part of this Agreement. 3. APPROPRIATIONS The terms of this Agreement are contingent on sufficient appropriations and authorization being made by the City Council for the performance of this Agreement. If sufficient appropriations and authorizations are not made by the City Council, this Agreement shall terminate upon written notice given by the CITY to CONTRACTOR. The CITY'S decision as to whether sufficient appropriations and authorizations exist shall be accepted by CONTRACTOR and shall be final. 4. COMPENSATION The CITY shall compensate CONTRACTOR for the performance of legal services under this Agreement at the hourly rates set forth in Exhibit "B" attached hereto, plus applicable taxes and expenses 5. DEVOTION OF ADEQUATE TIME CONTRACTOR will devote the necessary hours each week to the performance of projects that are required by the CITY and it will serve the CITY diligently and faithfully, and according to its best ability in all respects and will promote the best interests of the CITY. 6. TERM AND SCHEDULE Revised: May 2019 This Agreement shall become effective as of October 1, 2020 for a term of one (1) year through September 30, 2021 and, pending mutual written agreement, may be extended annually thereafter for up to four (4) additional one-year terms. 7. EXTENSIONS, CHANGES, AND AMENDMENTS This Agreement shall not be extended, changed, or amended except by instrument in writing executed by the parties. The CITY shall not be liable for payment of any extra services nor shall CONTRACTOR be obligated to perform any extra services except upon such written agreement. Such written approval shall indicate the date said extension, change, or amendment is effective and shall be signed by the parties to this Agreement. In the event that the parties cannot reach agreement as to a particular change, the issue shall be resolved pursuant to Article 21. 8. CHANGES AND EXTRA SERVICES BY THE CITY The CITY may make changes within the general scope of the SERVICES plus may also request CONTRACTOR to perform other extra services not incorporated within the Services set forth in this Agreement. If the CONTRACTOR is of the opinion that such change causes an increase or decrease in the cost and/or the time required for performing the changes or other services required by the City, CONTRACTOR shall so notify the CITY of that fact within five (5) business work days from the date of receipt of change by the CITY. The CITY shall provide written response to the CONTRACTOR within five (5) business work days from the date of receipt of CONTRACTOR'S written notification. 9. CHANGES AND EXTRA SERVICES BY THE CONTRACTOR In the event a condition is identified by the CONTRACTOR which, in the opinion of the CONTRACTOR, changes the services, costs, and/or time required for performance under this Agreement, the CONTRACTOR shall provide written notification to the CITY within five (5) business work days of such identification. The CITY shall respond in writing to such notification within five (5) business work days from the date of receipt of CONTRACTOR'S notification. 10. D E LAYS In the event that performance of SERVICES is delayed by causes beyond reasonable control of CONTRACTOR, and without the fault or negligence of CONTRACTOR, the time and total compensation for the performance of the SERVICES may be equitably adjusted by written agreement to reflect the extent of such delay. CONTRACTOR shall provide the CITY with written notice of delay pursuant to Article 9 including therein a description of the delay and the steps contemplated or actually taken by CONTRACTOR to mitigate the effect of such delay. The CITY will make the final determination as to reasonableness of delays. 11. TERMINATION This Agreement may be terminated by either party hereto upon fifteen (15) calendar days written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement through no fault of the terminating party. This Agreement may also be terminated by the CITY for its convenience or because the Revised: May 2019 PROJECT has been permanently abandoned, but only upon fifteen (15) calendar days written notice to CONTRACTOR. In the event of termination, CONTRACTOR shall be compensated for all services performed and costs incurred up to the effective date of termination for which CONTRACTOR has not been previously compensated. Upon receipt of notice of termination from the CITY, CONTRACTOR shall discontinue the SERVICES unless otherwise directed and upon final payment from the CITY deliver to the CITY the required number of copies of all data, drawings, reports, estimates, summaries, and such other information and materials as may have been accumulated by CONTRACTOR in the performance of this Agreement, whether completed or in process. 12. RECORDS AND AUDITS CONTRACTOR will maintain records indicating dates, length of time, and services rendered. The CITY has the right to audit billings both before and after payment, and contest any billing or portion thereof. Payment under this Agreement does not foreclose the CITY'S right to recover excessive or illegal payments. 13. DISCLOSURE AND OWNERSHIP OF DOCUMENTS, PRODUCTS, DESIGN, ELECTRONIC FILES All technical data, electronic files, and other written and oral information not in the public domain or not previously known, and all information, electronic files, and data obtained, developed, or supplied by the CITY will be kept confidential and CONTRACTOR will not disclose to any other party, directly or indirectly, without the CITY'S prior written consent unless required by lawful order. All technical data, electronic files, products developed, operational parameters, blueprints, and other information and work of the CONTRACTOR shall be the sole property of the CITY and shall be delivered to the CITY when requested and at the end of the Agreement. 14. INDEPENDENT CONTRACTOR CONTRACTOR represents that it has, or will secure, at its own expense, all personnel required in performing the SERVICES under this Agreement. Such personnel shall not be employees of, nor have any contractual relationship with the CITY. CONTRACTOR, consistent with its status as an independent contractor, further agrees that its personnel will not hold themselves out as, nor claim to be officers or employees of the CITY by reason of this Agreement. To the extent that CONTRACTOR employs any employees, CONTRACTOR shall be solely responsible for providing its own form of insurance for its employees and in no event shall CONTRACTOR'S employees be covered under any policy of the CITY. CONTRACTOR'S retention hereunder is not exclusive. Subject to the terms and provisions of this Agreement: (i) CONTRACTOR is able, during the Term hereof, to Revised: May 2019 perform services for other parties; and (ii) CONTRACTOR may perform for its own account other professional services outside the scope of this Agreement. CONTRACTOR is and shall be an Independent Contractor and shall be responsible for the management of its business affairs. In the performance of the work under this Agreement, CONTRACTOR will at all times be acting and performing as an Independent Contractor, as that term is understood for federal and state law purposes, and not as an employee of the CITY. Without limitation upon the foregoing, CONTRACTOR shall not accrue sick leave, jury duty pay, retirement, insurance, bonding, welfare benefits, or any other benefits, which may or may not be afforded employees of the CITY. CONTRACTOR will not be treated as an employee for purposes of: Workers' Compensation benefits; the Federal Unemployment Tax Act; Social Security; other payroll taxes, federal or any state income tax withholding; or the employee benefit provisions described in the Internal Revenue Code of 1986, as amended. Neither the CITY, nor its agents or representatives, shall have the right to control or direct the manner, details or means by which CONTRACTOR accomplishes and performs its services. Nevertheless, CONTRACTOR shall be bound to fulfill the duties and responsibilities contained in the Agreement. 15. NO JOINT VENTURE OR PARTNERSHIP Nothing contained in this Agreement shall create any partnership, association, joint venture, fiduciary or agency relationship between CONTRACTOR and CITY. Except as otherwise specifically set forth herein, neither CONTRACTOR nor CITY shall be authorized or empowered to make any representation or commitment or to perform any act which shall be binding on the other unless expressly authorized or empowered in writing. 16. ASSIGNMENT CONTRACTOR shall perform all the services under this Agreement and shall not assign any interest in this Agreement or transfer any interest in same or assign any claims for money due or to become due under this Agreement without the prior written consent of the CITY. 17. INSURANCE CONTRACTOR shall obtain and maintain insurance at its own cost and expense during the life of this Agreement, and shall require Subcontractors, if any, to maintain during the life of any subcontract: a. Professional Liability: $1,000,000 per claim CONTRACTOR shall furnish the CITY with a certificate(s) of insurance showing CONTRACTOR and Subcontractors, if any, have complied with this Article. The CONTRACTOR shall provide insurance certificates before work is to start on the project and shall provide the CITY thirty (30) days written notification of cancellation of such policies. 18. INDEMNITY AND LIMITATION CONTRACTOR shall indemnify, defend, and hold harmless the CITY from and against any and all claims, suits, actions, judgments, demands, losses, costs, expenses, Revised: May 2019 damages, and liability caused solely by, resulting solely from, or arising solely out of the negligent acts, errors, or omissions of CONTRACTOR, its officers, employees, agents, or representatives in the performance of the legal services under this Agreement. 19. APPLICABLE LAW This Agreement and the rights and obligations of the parties shall be governed by and construed by the laws of the State of New Mexico applicable to agreements between New Mexico parties made and performed in that state, without regard to conflicts of law principles. Venue shall be in the Third Judicial District, State of New Mexico. CONTRACTOR shall abide and be governed by all applicable state law, and CITY ordinances regarding the CONTRACTOR'S services or any work done pursuant to this Agreement. 20. BREACH In the event CONTRACTOR breaches any obligation contained in this Agreement, prior to instituting any action or dispute resolution procedure, the CITY shall give CONTRACTOR written notice of such breach. In the event CONTRACTOR fails to remedy the breach within five (5) working days of receiving such written notice, the CITY, at its sole discretion, without any obligation to do so and in addition to other remedies available under applicable law, may remedy CONTRACTOR'S breach and recover any and all costs and expenses in so doing from CONTRACTOR. 21. DISPUTE RESOLUTION In the event that a dispute arises between CITY and CONTRACTOR under this Agreement or as a result of breach of this Agreement, the parties agree to act in good faith to attempt to resolve the dispute. 22. NOTIFICATION All notices required or permitted under this Agreement shall be in writing and shall be deemed sufficiently served if served by Registered Mail addressed as follows: TO CITY: City of Las Cruces PO Box 20000 Las Cruces, NM 88004 ATTENTION: Delilah Walsh, Utilities Director With Copies to: City Attorney TO CONTRACTOR: McCarter & English, LLP 1301 K Street, NW Suite 1000 West Washington, DC 20005 ATTN: John P. Gregg, Partner Revised: May 2019 23. SCOPE OF AGREEMENT This Agreement incorporates all of the agreements, covenants, and understandings between the parties hereto concerning the subject matter hereof and that all such covenants, agreements, and understandings have been merged into this written Agreement. No prior agreement or understanding verbal or otherwise of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. McCARTER & ENGLISH, LLP BY: John P. Gregg, Partner Date THE CITY OF LAS CRUCES By: Alex Liu Purchasing Manager Date APPROVED AS TO FORM: City Attorney Revised: May 2019 EXHIBIT A: Professional Services Agreement: McCarter & English, LLP SCOPE OF SERVICES Represent the City's interests as a member of the El Paso Municipal Customer Group ("EPMCG") in regulatory and rate matters pending before the Federal Energy Regulatory Commission ("FERC"). EPMCG is an association of Small governmental natural gas shippers who use the pipeline system of El Paso Natural Gas Company ("EPNG"). City participation in EPMCG was approved in City Council Resolution No. 01-118. Represent the City in its contractual relationships with natural gas suppliers and with its natural gas transporter provider, being El Paso Natural Gas Company. Represent the City's interests on matters before FERC, predominately as those interests relate to El Paso Natural Gas Company, separate from representing the City's interests as a member of EPMCG. Monitor regulatory proceedings and market activities that are relevant to the City's natural gas business and advise the City accordingly. Revised: May 2019 EXHIBIT B: Professional Services Agreement: McCarter & English, LLP COMPENSATION 1. Compensation through December 31, 2020, for performing legal services on behalf of the City as a member of the El Paso Municipal Customer Group ("EPMCG"): The rate for performing legal services to EPMCG shall be $535 per hour for partners and the City shall pay a pro-rated share of those attorney fees that has been established by consensus within EPMCG based on throughput. The City's pro-rated share is currently 27.18% of $535 per hour. 2. Compensation beginning on January 1, 2021, for performing legal services on behalf of the City as a member of the El Paso Municipal Customer Group ("EPMCG"): The rate for performing legal services to EPMCG shall be $565 per hour for partners and the City shall pay a pro-rated share of those attorney fees that has been established by consensus within EPMCG based on throughput. The City's pro-rated share is currently 27.18% of$565 per hour. 3. Compensation through December 31, 2020, for performing legal services exclusively for the City: The rate shall be $495 per hour. 4. Compensation beginning on January 1, 2021 for performing legal services exclusively for the City: The rate shall be $525 per hour 5. Compensation paid to non-partners: a. Law Clerks and paralegals legal/assistants: $125 to $175 per hour. b. Associate attorneys: An hourly rate lower than the rates charged by partners based on the associate attorney's experience. 6. Costs: a. Photocopying: $0.15 per copy b. Postage, Filing fees, Public Access to Court Electronic Records ("PACER"), Research: Actual Cost Revised: May 2019 ATTACHMENT "A" *`�AAW City of LOS Cruces PURCHASING SECTION SOLE SOURCE DETERMINATION ACKNOWLEDGEMENT I am aware of the City's requirements for purchasing all items via competitive procurement plus criteria for justifying a sole source procurement. I have obtained and assessed necessary technical information and have made a concerted effort to consider and review equipment/services from alternate sources. I have attached pertinent and relevant documentation supporting this effort and from which a sole source determination may be based. Request By: Jocelyn A. Garrison, Senior Assistant City Attorney (Note: The person requesting a sole source determination should be an expert and capable of supporting this�request) Signed: Date: 06.11.2020 Recommendation: Company Name: McCarter& English Contact Name: John P. Gregg Address: 1301 K Street, NW, Suite 1000 West City, State, Zip: Washington, DC Telephone: (202) 7533416 Fax Number: Email: jgregg@mccarter.com An approved Sole Source Determination may be used for c,vc --i a from date of first use. Information for additional procurements should be added as needed, and then the updated form should be attached to the new requisition(s). Description of Product/Service.- Requisition# Estimated Cost Date Specialized Legal Services regarding natural gas TBD Not to Exceed July 1, 2020 $100,000 Page 1 of 4 Revised Jan 2017 DETERMINATION (to be completed by the Purchasing Section): Based upon the information and support provided in justifying this request for sole source procurement, a sole source determination is hereby dAPPROVED NOT APPROVED-for the following reason(s): If a determination for sole source procurement is hereby approved, negotiation with the selected source should be attempted and documented. Documentation includes terms/conditions/price offered prior to and after negotiation. This determination shall remain effective until such time that the reasons for this determination stated herein no longer apply. Signed: Date: PaOe4of4 nev�eu�m�nr � City of Las Cruces' MOUNTAINS OF OPPORTUNITY MEMORANDUM To: Alex Liu, Purchasing Manager From: Jocelyn A. Garrison, Sr. Assistant City Attorney Initials: Date: June 11, 2020 File #: N/A Subject: Sole Source Justification Pursuant to LCMC 1997, Section 24-95 McCarter & English The City Attorney's Office on behalf of the City Manager's Office desires to retain the legal services of McCarter & English to represent the City for natural gas litigation matters. For decades, the City's Utilities Department has used the professional legal services of John Gregg, as an attorney formerly with the law firm of Miller, Balis & O'Neil and currently as an attorney with the law firm of McCarter & English after it acquired Miller, Balis & O'Neil in 2014. Mr. Gregg is a specialist in natural gas matters, and the Utilities Department has used him as its attorney in multiple natural gas matters including the acquisition of natural gas supplies and also as the attorney for the El Paso Municipal Customer Group ("EPMCG") in administrative proceedings before the Federal Energy Regulatory Commission ("FERC"). EPMCG is an association of municipalities, including Las Cruces, and small public gas systems who transport natural gas on El Paso Natural Gas pipelines and have a common interest, and was established in the 1980's. The EPMCG retained the services of Miller, Balis & O'Neil years before the City first entered into a sole source Legal Services Contract with the firm in 2000 in Resolution No. 01-098. That Contract provided that the Firm would represent the City individually and the City as a member of the EMPCG at different hourly rates. This base Contract has been periodically amended over the years to increase the hourly rates charged by the firm. SEE Council Resolution Nos. 01-181, 03-161, 04-238, 05-274, 06-194, and 07-223. There have been two (2) assignments concerning the 2000 Legal Service Contract with Miller, Balis & O'Neil. The first assignment was in 2008. After the Utilities Board was created, the 2000 Contract was assigned to the Utilities Board on behalf of the City effective January 1, 2008. The second assignment was when McCarter & English acquired Miller, Balis & O'Neil. Board Resolution No. 13-14-033 approved an assignment of the Legal Services Contract from Miller, Balis & O'Neil to McCarter & English. Thereafter, the Utilities Board periodically approved amendments to the 2000 Contract to increase the hourly rates charged by Miller, Balis & O'Neil and then by McCarter & English. SEE Board Resolution Nos. 07-08-009, 10-11-019, 11-12-027, 12-13-018, 13-14-0331 14-15- LCU024, 15-16-LC0004, 17-18-LCU012, 18-19-LC0009, and most recently 19-20- 010. AN EQUAL OPPORTUNITY EMPLOYER Alex Liu, Purchasing Manager Page 2 of 3 Sole Source Justification Pursuant to LCMC 1997, Section 24-95 McCarter& English June 11, 2020 While the City Council approved the sole source Legal Services Contract with Miller, Balis & O'Neil in 2000, it also approved the City's participation with the EPMCG in Resolution No. 01-118. The EPMCG is not a separate legal entity. Rather it has always been an association of small natural gas shippers who use the pipeline system of El Paso Natural Gas Company to obtain natural gas for their gas distribution systems. The transportation rates charged by El Paso Natural Gas Company are regulated by FERC which is why these shippers banded together to protect their shipper interests before FERC. Resolution No. 01-118 approved the City's participation with EPMCG "until such time as it disbands, or the City determines that continued involvement is no longer in the public interest." Miller, Balis & O'Neil, and then McCarter & English have charged the members of the EPMCG a pro-rated share of their attorney fees based on the volume of natural gas transported collectively divided by the volume transported by individual members. The City currently pays approximately 27,18% of the McCarter & English's billings to the EPMCG. The Utilities Department on behalf of the City finds that its continued involvement with EPMCG remains in the public interest as it would be exceedingly expensive for the City to participate in FERC proceedings on its own. So long as the EPMCG uses the legal services of McCarter & English and so long as the City remains a member of EPMCG, the City needs to have a contract with McCarter& English, which has always been and remains the basis for the sole source justification for using these legal firms. The City could put out a request for proposal for legal services just for natural gas matters on behalf of the City separate the legal services to the City as a member of EPMCG. However, as set forth in a letter dated September 3, 2019 to Mario Puentes, Gas Analyst with the Utilities Department, John Gregg states as he has previously stated that the firm continues "to discount our partner rate for individual EPMCG member work pertaining to their individual systems". Board Resolution No. 19-20- 010 is the most recent Board approved amendment to increase the hourly rate under the base 2000 Legal Services Contract. When Management approved the Board Action Form for Resolution No. 19-20-010, the Utilities Department was directed to revise the 2000 base Legal Services Contract using the Purchasing Section's current Professional Services Agreement and to secure the sole source determination from Purchasing. Therefore, after conferring with Marcy Driggers, former Senior Assistant City Attorney, and with Mario Puentes, Utilities Dept. Gas Business Analyst, who each have decades of history with the matters set forth above, and at the direction of Management to seek approval of a sole source contract with McCarter & English, I am requesting that the Purchasing Section authorize a sole source award of a Professional Services Agreement with the law firm of McCarter & English, LLP, as authorized by LCMC Section 24-95(2), which provides that a contract may be awarded without competition when it is likely that an award to any other source would result in "substantial duplication of cost to the city that is not expected to be recovered through competition". Pursuant to the option provided in LCMC Section 24-95(1), a sole source award to McCarter & English is warranted when an award to another attorney or law firm Alex Liu, Purchasing Manager Page 3 of 3 Sole Source Justification Pursuant to LCMC 1997, Section 24-95 McCarter& English June 11, 2020 would not save the City money for is it unlikely that another attorney would be more qualified than McCarter & English should a Request for Proposal be issued. Enclosures as noted herein cc: Jennifer Vega-Brown, City Attorney cc: Jorge A. Garcia, Utilities Director cc: Delilah A. Walsh, Assistant Utilities Director cc: Alma Ruiz, Utilities Sr. Office Manager cc: Mario Puentes, Utilities Gas Business Analyst ATTACHMENT "B" McCarter McCarter&English,LLP English T. 1301 K Street,NW Suite 1000 West Washington,DC 20005 www.mccarter.com October 12, 2020 Mario Puentes Gas Analyst City of Las Cruces, New Mexico P.O. Box 20000 Las Cruces, NM 88004 Re: 2021 Fiscal Year Legal Fee Schedule Dear Mario: The purpose of this letter is to advise you of the fee schedule for McCarter & English, LLP commencing January 1, 2021. 1 project another"light year" in terms of work billed. Our standard partner rate will increase to $565 per hour for work undertaken for the El Paso Municipal Group. We will continue to discount our partner rate for individual EPMCG member work pertaining to their individual systems,which will be$525 per hour. The hourly rates for non-partners will be lower and will vary according to experience, similarly the hourly rates for law clerks, paralegal/legal assistants will be set at$125-175. We will not raise our fees for printing, copying, filing, and retrieving documents. We are delaying this fiscal year increase three months because of the pandemic, but must increase our hourly rates to keep up with increasing costs, particularly the direct and indirect costs of our employees. We continue to see that our rates are lower than other members of the Energy Bar here in Washington. Our goal remains to provide value by charging the lowest rates that are consistent with sound business practices. I highly value our incredibly long-standing relationship. Thank you for your continued loyalty to us. Please call if you have any questions regarding our representation. Sincerely, 4 John P. Gregg M E 1 34480796v.1 ATTACHMENT "C" LAS CRUCES UTILITIES BOARD RESOLUTION NO. 20-21-LC0004 A RESOLUTION AUTHORIZING FUNDING FOR PROFESSIONAL LEGAL SERVICES UNDER THE EXISTING ASSIGNED CONTRACT APPROVED IN UTILITIES RESOLUTION 13-14-033 WITH McCARTER & ENGLISH, LLP, SPECIALIZING IN THE ENERGY AND NATURAL GAS INDUSTRY AND AUTHORIZING A PURCHASE ORDER IN AN ESTIMATED AMOUNT UP TO $25,000.00 FOR FISCAL YEAR 2020/2021, EFFECTIVE 3ULY 1, 2020. The Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces, is informed that: WHEREAS, the City of Las Cruces ("City") and the El Paso Municipal Customer Group ("EPMCG") previously utilized the legal services provided by the Miller, Balis, and O'Neil ("MBO"), P.C., law firm for over 25-years, with John P. Gregg as the principal attorney; and WHEREAS, on October 2, 2000, the City Council awarded a Legal Services Contract to the law firm of MBO in City Council Resolution 01-098. On March 13, 2014, the Las Cruces Utilities ("LCU") Board approved the assignment of the Legal Services Contract with MBO to McCarter & English, LLP, in LCU Board Resolution No. 13-14-033, effective February 1, 2014, with John P. Gregg continuing as principal attorney at McCarter & English, LLP; and WHEREAS, EPMCG was created over 25-years ago by the City; Mesa, AZ; and the Navajo Tribal Utility Authority, when they each recognized the need to protect their common interests on the El Paso Natural Gas ("EPNG") pipeline in Federal Energy Regulatory Commission ("FERC") rate proceedings; and WHEREAS, current EPMCG members are the City; Deming, New Mexico; Socorro, New Mexico; Mesa, Arizona; Navajo Tribal Utility Authority; Benson, Arizona; Safford, Arizona; Duncan Rural Services Corporation; and the Graham County Utilities, Inc., also in Arizona. By participating in the EPMCG, the City keeps LCU FY20 06/20 Rev. 4 LCU Board Resolution No. 20-21-LCU004 Page 2 of 3 its costs manageable and continues to receive quality representation by a law firm that is a recognized expert in the energy and natural gas industry; and WHEREAS, on June 16, 2020, McCarter & English, LLP, provided a Letter of Intent to Dr. Jorge Garcia to continue providing legal services to the City. At the beginning of each fiscal year ("FY"), a purchase order is issued with an estimated dollar amount Utilities staff anticipates will be needed for legal services; and WHEREAS, Utilities staff is recommending a purchase order be authorized in an amount up to $25,000.00 for legal services to be performed during FY2020/2021 ("FY21"), effective July 1, 2020, by McCarter & English, LLP, utilizing funding from the Gas Professional and Technical Services account number 5200-50234001- 721070. NOW, THEREFORE, Be it Resolved by the Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces: (I) THAT funding be authorized for Professional Legal Services under the existing assigned contract approved in Utilities Resolution 13-14-033 with McCarter & English, specializing in the energy and natural gas industry and authorize staff to expend up to $25,000.00 via purchase order assigned to McCarter & English, for legal services to be performed during FY21, effective July 1, 2020, utilizing the approved budget funding from the Gas Professional and Technical Services account number 5200- 50234001-721070. (TI) THAT City staff is hereby authorized to do all deeds necessary in the accomplishment of the herein above. LCU FY20 06/20 Rev. 4 LCU Board Resolution No. 20-21-LC0004 Page 3 of 3 DONE AND APPROVED this 9th day of jujl)� 2020. APPROVED: VA 1 rl By Board Chair ATTEST: Seereta ry VOTE: Chair Little: AYE Moved by SORG Vice-Chair Archuleta: AYE Commissioner Bencomo: AYE Seconded by BENCOMO Commissioner Carmichael: AYE Commissioner Hardee: AYE Commissioner Johnson: AYE Commissioner Sorg: AYE APPROVED AS TO FORM: �r.,Assiiistant City Attorney LCU FY20 06/20 Rev. 4 City of Las Cruces MOUNTAINS OF OPPORTUNITY LAS CRUCES UTILITIES BOARD OF COMMISSIONERS ACTION FORM For Meeting of November 12, 2020, (Adoption Date) TITLE: A RESOLUTION APPROVING A SOLE SOURCE AGREEMENT WITH MCCARTER & ENGLISH, LLP, LAW FIRM SPECIALIZING IN THE ENERGY AND NATURAL GAS INDUSTRY FOR FISCAL YEAR 2020/2021, EFFECTIVE OCTOBER 1, 2020, FOR ONE (1) YEAR WITH FOUR (4) ONE-YEAR (1) RENEWALS SUBJECT TO APPROVED BUDGET APPROPRIATIONS AND ANNUAL RENEWALS. BACKGROUND: On October 2, 2000, the Las Cruces City Council passed Resolution No. 01-098, approving a Sole Source Legal Services Contract with MBO, now McCarter & English, LLP ("McCarter & English"). There continues to be a need for the services of McCarter & English. On March 13, 2014, the Las Cruces Utilities ("LCU") Board of Commissioners ("Board") approved the assignment of the Legal Services Contract with Miller, Balis & O'Neil, P.C. ("MBO") law firm to McCarter & English, in LCU Board Resolution No. 13-14-033, effective February 1, 2014, with John P. Gregg continuing as principal attorney at McCarter&English. On July 9, 2020, the LCU Board authorized the funding for Professional Legal Services under the existing contract and approved assignment with McCarter & English, specializing in the energy and natural gas industry, an amount up to $25,000.00 for Fiscal Year 2020/2021 ("FY21") under LCU Board Resolution No. 20-21-LC0004. The City of Las Cruces ("City") and the El Paso Municipal Customer Group ("EPMCG") both use the legal services of McCarter & English. EPMCG was created over 25 years ago by the Continue on additional sheets as required) Name of Drafter- Department: Phone: Mario Puentes A Utilities 528-3552 Account Number: Amount of Expenditure: Budget Amount: N/A N/A N/A Strategic Plan Goal / Objective / Strategy Addressed: Natural Gas Administration: To provide direction and resources for the operation and maintenance of the natural gas system and maintain a master plan of the infrastructure assets to provide natural gas delivery services to ratepayers and surrounding communities,so they can experience a safe and dependable supply of natural gas Performance Bud et Goal / Objective Addressed: N/A Department Signature Phone Department Signature Phone J r\ - /9 Utilities L528-3512 Budget 1_e. ,ii ,) 541-2300 Assistant Legal s 541-2128 City Manager 541-2271 City Manager 541-2076 LCU 5/18 Rev.4 ,ham I. /I , lob q, 4v 2 0 LCU Board Action Form Page 2 City; Mesa, Arizona; and the Navajo Tribal Utility Authority when they each recognized the need to protect their common interests on the El Paso Natural Gas ("EPNG") pipeline in Federal Energy Regulatory Commission ("FERC") rate proceedings. Current EPMCG members are the City; Deming, New Mexico; Socorro, New Mexico; Mesa, Arizona; Navajo Tribal Utility Authority; Benson, Arizona; Safford, Arizona; Duncan Rural Services Corporation; and the Graham County Utilities, Inc., also in Arizona. By participating in the EPMCG, the City keeps its costs manageable and continues to receive quality representation by a law firm that is a recognized expert in the energy and natural gas industry. McCarter & English has requested an increase in its standard partner hourly rate from $535.00 per hour to $565.00 per hour for work performed for the City on behalf of LCU, as a member of the EPMCG; and from $495.00 per hour to $525.00 per hour for work performed for the City individually, on behalf of LCU. Mr. Gregg explains that the rate increase is being delayed from October 1, 2020, to January 1, 2021, due to the pandemic. The hourly rate for McCarter & English non-partners will be lower and vary according to experience. The rates for law clerks, paralegal/legal assistants will remain at $125.00 - $175.00 per hour; the fees for copying, filing, and retrieving documents will also remain the same. Pursuant to the 2000 Legal Services Contract, which has been assigned to McCarter & English, and the 2020 Sole Source Professional Services Agreement the City, on behalf of LCU, only pays a portion of the McCarter & English legal costs incurred for the EPMCG, that portion is approximately 27.18%. The City's Utilities and Legal staff recommend approval of the Sole Source Professional Services Agreement, which is substantially to form. SUPPORT INFORMATION: 1. LCU Resolution No. 20-21-LCU018. 2. Exhibit "A" - Professional Services Agreement. 3. Attachment "A" - City Purchasing Section Sole Source Determination Form and Memorandum dated June 11, 2020. 4. Attachment "B" - Legal Fees Letter from John Gregg dated October 12, 2020. 5. Attachment "C" - Resolution No. 20-21-LC0004. BOARD OPTIONS: 1. VOTE ""YES" - Will approve Resolution No. 20-21-LCU018 and approve the sole source Professional Services Agreement with McCarter & English, effective October 1, 2020, and rate increase effective January 1, 2021. 2. VOTE "NO" - Will reject Resolution No. 20-21-LCU018 and not approve the Sole Source Professional Services Agreement with McCarter & English. In this circumstance, staff will require strategic guidance. (Continue on additional sheets as required) City of Las Cruces° MOUNTAINS OF OPPORTUNITY LAS CRUCES UTILITIES BOARD ACTION FORM AND RESOLUTION ROUTING SLIP The purpose of this Routing Slip will help ensure the highest quality of work is presented to the LCU Board of Commissioners for action on the Resolution. As the drafter of a Las Cruces Utilities (LCU) Board Action Form (BAF) and Resolution (RES) you are responsible to ensure all documents submitted for the Utilities Director's approval are without errors. Please identify a Utility associate to review the entire BAF/RES packet, including any Exhibits and/or Attachments; followed by your Deputy Director. The FINAL COMPLETE BAF/RES packet is required no later than 8:00am 15- working days before the Board Meeting. The additional time is required to obtain all final signatures from City Hall and create the agenda packet in order to distribute to the Board Members. For Meeting of: November 12, 2020 Resolution: 20-21-LCU018 (Date) UTILITY STAFF REVIEWERS PRINT NAME INITIALS DATE ,Z) 1. Drafter Mario Puentes 16-os- zo2c 2. Selected by Drafter Peggy Risner � 1b/��/D�D 3. Legal Department Robert Cabello �� . 1 ?b2o 4. Budget Verification by Rate & Economic Analysis 1 �Udn Z �0-lb-202b 5. Senior Office Manager Alma Ruiz D �S — s�0n,` R emr o1 ias cruces- LCU BAF/RES ROUTING SLIP FY21 8/2020 Rev.0