CM-12-10-213ROUND ROCK, TEXAS
PURPOSE. A SS ON. PROSPERrrY
Item Caption:
C,31-Jz-/o- Z13 RECEIVE
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OCj18
City Manager Approval Form
Consider executing a Contract for Consulting services with Fox Smolen & Associates for the Atmos
Agreement review and analysis.
Approval Date: October 19, 2012
Department Name: Finance Department
Project Manager: Cheryl Delaney
Assigned Attorney: J. Kay Gayle
Item Summary:
Fox/Smolen & Associates will be responsible for the review of fees paid to the City of Round Rock by Atmos Energy for the
preceding three year period to ensure that gross revenues were accurately reported and paid on time and in accordance with the
controlling franchise agreement. Consultant's scope of services shall include but not be limited to review of franchise agreement
language; request for and securing accurate billing records and documentation of fee calculation, including estimation of
payments and subsequent true -up mechanisms; and verification of reported revenue subject to fees using Atmos Energy's billing
records.
No. of Originals Submitted: 2
Project Name: Atmos Agreement review Consultant
Cost: $5,000
Source of Funds: General Fund
Source of Funds (if applicable): Select Source Fund
Account Number:
Finance Director Approval: Cheryl Delaney Date: 10/17/12
Department Director Approval: Cheryl Delaney Date: 10/17/12
**Electronic signature by the Director is acceptable. Please only submit ONE approval form per item. **
CIP r7 Budget
N/A OK
111
N/A OK
Purchasing
❑ ❑✓
N/A OK
Accounting
❑ ❑✓
N/A OK
ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL
REV. 6/20/11
CITY OF ROUND ROCK AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
WITH FOX/SMOLEN & ASSOCIATES
This Agreement (hereinafter referred to as the "Agreement") is made by and between the
City of Round Rock, a Texas home -rule municipal corporation, whose offices are located at 221
East Main Street, Round Rock, Texas 78664-5299, (hereinafter referred to as the "City") and
Fox/Smolen & Associates Consulting Services, whose offices are located at 1701 Nueces Street,
Austin, Texas 78701, (hereinafter referred to as the "Consultant").
This Agreement shall recite the contractual tenns whereby the City of Round Rock and
Fox/Smolen & Associates agree to perforin, by way of illustration and not limitation, the services
and responsibilities delineated in this Agreement, within the work schedule timelines and in
accordance with the fee schedule delineated herein.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The initial term of this Agreement shall be until full and satisfactory completion of the
work specified herein is achieved, but in no event later than six (6) months from date of
execution hereof.
At City's option, this Agreement may be renewed for an additional six (6) month period
from the expiration date of the initial term, only upon the express written agreement of both
parties and only provided Consultant has performed each and every contractual obligation
specified in this Agreement.
City reserves the right to review the Agreement and contractual relationship at any time,
and may elect to terminate same with or without cause or may elect to continue.
259949/jkg
1.02 NOT-TO-EXCEED CONTRACT AMOUNT; TIME AND MATERIALS BASIS;
AND SCOPE OF SERVICES DELINEATION
In consideration for the professional services to be performed for City by Consultant,
City agrees to pay Consultant Five Thousand and No/100 Dollars ($5,000.00), same being a
maximum not-to-exceed sum made in payment for services and the Scope of Services
deliverables as delineated herein and in applicable exhibits. The parties expressly acknowledge
that City shall pay Consultant on a "time and materials" actually-expended basis, and that only
work actually performed by Consultant will be paid for by City. The parties acknowledge that
the assumption upon which the $5,000.00 fee is based is as follows: that Atmos Energy is
reasonably forthcoming with requested data, and that data can be transmitted using Excel
spreadsheets and downloaded billing records. The parties further acknowledge that Consultant's
travel expenses, pre-approved in advance in writing by City, will be billed at cost without
markup as out-of-pocket expenses; and that travel time will not be billed.
Consultant's Scope of Services shall be as follows:
Fox/Smolen & Associates shall assign Marilyn J. Fox as the principal responsible for
performance under this Agreement, and Consultant shall review fees paid to the City of Round
Rock by Atmos Energy for the preceding three-year period to ensure that gross revenues were
accurately reported and paid on time and in accordance with the controlling franchise agreement.
Consultant's Scope of Services shall include but not be limited to review of franchise agreement
language; request for and securing accurate billing records and documentation of fee calculation,
including estimation of payments and subsequent true-up mechanisms; and verification of
reported revenue subject to fees using Atmos Energy's billing records. Deliverables shall
include but not be limited to documentation of findings, including workpapers and requests for
information; making all required or requested written reports to the City of Round Rock;
attending meetings and telephone conferences, and sending/receiving/responding to emails with
City staff and administration; making all required or requested status reports to City staff; and
being available for presentations to City Council, if and when requested by City.
For purposes of this Agreement, and to further explicate this Section 1.02, Consultant has
issued its Scope of Services attached hereto as Exhibit "A," said exhibit being incorporated
herein by reference for all purposes. This Agreement, including all referenced exhibits, shall
evidence the entire understanding and agreement between the parties and shall supersede any
prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services described herein and under the
attached Scope of Services within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for City and/or advising City concerning
those matters on which Consultant has been specifically engaged. Consultant shall perform its
services in accordance with this Agreement, in accordance with any appended exhibits, in
accordance with due care, and in accordance with prevailing consulting industry standards for
comparable services.
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1.03 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Not -to -Exceed Total: Unless subsequently changed by additional Supplemental
Agreement to this Agreement, duly authorized by City Council or City Manager action,
Consultant's total compensation hereunder shall not exceed $5,000.00. This amount represents
the absolute limit of City's liability to Consultant hereunder unless same shall be changed by
additional Supplemental Agreement, and City shall pay, strictly within the confines of the not -to -
exceed sum recited herein, Consultant's professional fees for work done on behalf of City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon claims,
whether paid by City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City
determines that there has been a significant change in (1) the scope, complexity, or character of
the services to be performed; or (2) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this
Agreement. Consultant shall not perform any work or incur any additional costs prior to
execution by both parties of such Supplemental Agreement. Consultant shall make no claim for
extra work done or materials furnished until there is full execution of any Supplemental
Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred
by Consultant relating to additional work not directly authorized by Supplemental Agreement,
1.04 TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit a series of monthly
detailed invoices to City for services rendered. Each invoice for professional services shall detail
the services performed, along with documentation. All payments to Consultant shall be made on
the basis of the invoices submitted by Consultant and approved by City.
Should additional backup material be requested by City, Consultant shall comply
promptly. In this regard, should City determine it necessary, Consultant shall make all records
and books relating to this Agreement available to City for inspection and auditing purposes.
If City has any dispute with work performed, then City shall notify Consultant within
thirty (30) days after receipt of invoice. In the event of any dispute regarding the work
performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed
services or (b) provide City with an appropriate credit.
Payment of Invoices: City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.08 herein. Under no circumstances shall Consultant be entitled to
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receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets: City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
1.05 REQUIRED REPORTS
Consultant agrees to provide City with detailed final written reports, together with all
information gathered and materials developed during the course of the project. Additionally, if
deemed necessary by City, Consultant agrees to provide any necessary oral presentations of such
detailed final written reports, at City's designation and at no additional cost to City.
1.06 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the Scope of Services to be performed is generally
enumerated herein and in Exhibit "A." Notwithstanding anything herein to the contrary, the
parties agree that City retains absolute discretion and authority for all funding decisions, such
decisions to be based solely on criteria accepted by City which may be influenced by but not be
dependent on Consultant's work.
1.07 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then -current fiscal year.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed or the date City receives a correct invoice for the goods or services, whichever is later.
Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of
the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
(1)
There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
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(2) There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late;
The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instruction relating
to the payment.
(3)
1.10 TERMINATION
This Agreement may be terminated for any of the following conditions:
(1)
(2)
(3)
By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than fifteen (15) days prior to termination.
By mutual agreement and consent of the parties, such agreement to be in writing.
By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such terrnination notice to be given in writing to
the other party.
(4) By either party for failure by the other party to fulfill its obligations herein.
(5)
By satisfactory completion of all services and obligations described herein.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter be paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
If either party defaults in performance of this Agreement or if City terminates this
Agreement for default on the part of the other party, then City shall give consideration to the
actual costs incurred by Consultant in performing the work to the date of default. The cost of the
work that is useable to City, the cost to City of employing another firm to complete the useable
work, and other factors will affect the value to City of the work performed at the time of default.
The termination of this Agreement shall extinguish all rights, duties, and obligations of
City and the terminated party to fulfill contractual obligations. Termination under this section
shall not relieve the terminated party of any obligations or liabilities which occurred prior to
cancellation.
1.11 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not City's employee. Consultant's
employees or subcontractors are not City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
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into contracts as agent for the other party. Consultant and City agree to the following rights
consistent with an independent contractor relationship:
(1)
Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
Neither Consultant nor its employees or subcontractors shall receive training from
City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7) Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
(3)
(4)
(5)
1.12 NON -SOLICITATION
All parties hereto agree that they shall not directly or indirectly solicit for employment,
employ, or otherwise retain staff of the other during the term of this Agreement.
1.13 CONFIDENTIALITY; SUPPORT; AND MATERIALS OWNERSHIP
Consultant hereby acknowledges and agrees that its representatives may have access to or
otherwise receive information, during the furtherance of its obligations in accordance with this
Agreement, which is of a confidential, non-public or proprietary nature. Consultant shall treat
any such information received in full confidence and shall not disclose or appropriate such
Confidential Information for its own use or the use of any third party at any time during or
subsequent to this Agreement. As used herein, "Confidential Inforniation" means all oral and
written information concerning City, its affiliates and subsidiaries, and all oral and written
inforniation concerning City or its activities, that is of a non-public, proprietary or confidential
nature including, without limitation, information pertaining to customer lists, services, methods,
processes and operating procedures, together with all analyses, compilation, studies or other
documents, whether prepared by Consultant or others, which contain or otherwise reflect such
information. The term "Confidential Information" shall not include such materials that are or
become generally available to the public other than as a result of disclosure of Consultant, or are
required to be disclosed by a governmental authority.
Consultant acknowledges its understanding that City is a municipal entity subject to
the Texas Public Information Act, and that City's duties run in accordance therewith.
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Consultant shall defend, at its sole expense, any claim or suit brought against City
alleging that any software or database furnished under this Agreement infringes a patent or
copyright, and shall pay all costs and damages awarded, provided that Consultant is given
prompt written notice of such claim and is given information and reasonable non -monetary
assistance to defend or settle the claim. In the defense or settlement of the claim, Consultant
may obtain for City the right to continue using the software or database, replace or modify the
software or database so that it becomes non -infringing or, if such remedies are not reasonably
available, grant City a credit for the software or database.
1.14 WARRANTIES
Consultant warrants that all services performed shall be consistent with generally
prevailing professional or industry standards, and shall be performed in a professional
workmanlike manner. Consultant shall re -perform work not in compliance with this warranty.
1.15 INDEMNIFICATION
Consultant agrees to hold harmless, exempt, and indemnify City, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys fees and all other costs and fees incident to any work done as a
result hereof.
To the extent allowable by law, City agrees to hold harmless, exempt, and indemnify
Consultant, its officers, agents, directors, servants, representatives and employees, from and
against any and all suits, actions, legal proceedings, demands, costs, expenses, losses, damages,
fines, penalties, liabilities and claims of any character, type, or description, including but not
limited to any and all expenses of litigation, court costs, attorneys fees and all other costs and
fees incident to any work done as a result hereof.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.16 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties hereunder without the other's prior written approval.
1.17 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incunTed while performing services under this Agreement. City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
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(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3) Withhold state or federal income tax from any of Consultant's payments.
if requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.18 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant and its consultants, agents, employees and subcontractors shall comply with
all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and all applicable rules and regulations promulgated by local, state and national
boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks,
copyrights, and the like required in the performance of the services contracted for herein.
1.19 DESIGNATION OF CITY REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Cheryl Delaney
Finance Director
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Telephone: 512-218-5445
Email: cdelaney(cilroundrocktexas.gov
1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to the recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Marilyn J. Fox
Fox/Smolen & Associates
1701 Nueces Street
Austin, TX 78701
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Notice to City:
City of Round Rock
Steve Norwood, City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.21 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
1.22 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including any appended exhibits, constitute
the entire agreement between the parties and supersede all previous communications,
representations, and agreements, either written or oral, with respect to the subject matter hereof.
No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.23 DISPUTE RESOLUTION
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
1.24 ATTORNEY FEES
In the event that any lawsuit is brought by one party against any of the other parties in
connection with this Agreement, the prevailing party shall be entitled to seek to recover its
reasonable costs and reasonable attorney fees.
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1.25 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.26 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.27 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
1.28 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
Time is of the essence to this Agreement. Consultant understands and agrees that any
failure of Consultant to complete the services due under this Agreement within the agreed term
as delineated in Section 1.01 herein will constitute a material breach of this Agreement.
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City agrees to provide Consultant with one (1) executed original of this Agreement.
This Agreement may be executed
considered as one original.
IN WITNESS WHEREOF, the
hereafter indicated.
CITY OF ROUND ROCK,XAS
'
Printed Name: �r9tlfj•
By:
in multiple counterparts, which taken together shall be
parties have executed this Agreement on the dates
Title:
Date Signed:
FOR CITY, ATTEST:
By:
Sara L. White, City Clerk
FOR CIT PRO ED A. TO FORM:
By: -
Step a i L. heets, City Attorney
FOX/SMOLEN & ASSOCIATES
CONSULTING SERVICES
By:
Printed Name: Qt ( J 3 Fox
Title: -i) RAS I ac e.)
Date Signed: /0/ 9 / a d / �---
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FoxiSmolen & Associates
CONSULTING SERVICES
1701 Nueces Street
Austin TX 78701
Fox, Smolen & Associates ("FSA") proposes to review fees paid to the City of Round Rock by
Atmos Energy for a three year period to ensure that gross revenues were accurately reported and
paid on time and in accordance with the franchise agreement. We have extensive experience
reviewing franchise compliance for companies holding franchise agreements with cities to
ensure that the franchise fees paid to the City of Round Rock are calculated correctly.
Scope of Services:
✓ Review franchise agreement language
✓ Request billing records and documentation of fee calculation, including estimation of
payments and subsequent true -up mechanisms
✓ Verify report revenue subject to fees using Atmos billing records
Deliverables include doctunentation of findings, including workpapers and requests for
information, written report to the City of Round Rock, meetings, emails and telephone
conferences with City staff and company, and status reports to City staff. FSA will be available
for Council presentation, if requested.
FSA hourly billing rates are as follows:
Marilyn J. Fox $175
Paul Smolen $175
Senior Analyst $135
Staff $ 95
To conduct the three year review, we anticipate the cost of the project not to exceed $5,000.
This estimate assumes that the company is forthcoming with data and data can be transmitted
using Excel spreadsheet and downloaded billing records. Invoices will be submitted monthly
FoxlSmolen & Associates
CONSULTING SERVICES
1701 Nueces Street
Austin TX 78701
based on the hours worked. Travel expenses will be billed at cost for out of pocket expenses.
Travel time is not billed.
References;
Mr. Juan Olguin, Deputy Assistant Director, Administration and Regulatory Affairs
City of Houston, TX
611 Walker, 7th Floor
Houston, TX 77002
(713) 837-9623
ivan.olguin@houstontx.gov
Ms. Rondella Hawkins
Manager Telecommunications and Regulatory Affairs
City of Austin, TX
P.Q. Box 1088
Austin, TX 78767
(512) 974-2422
rondella.hawkins@ci.austin.tx.us
ci.austi.n.tx.us
Micah Grau
Assistant City Manager
401 W. Front Street
City of Hutto, Texas
P: 512.759.4032
F: 512.846.2653
Micah . GrauHuttoTX. go v
FoxiSmolen & Associates
CONSULTING SERVICES
1701 Nueces Street
Austin TX 78701
MARILYN J. Fox
PRESIDENT
Marilyn is a professional accountant, specializing in rate regulation of electric, gas and water
utilities. She has negotiated franchise agreements and contracts with business entities that use public rights -of
ways. She has served as an expert witness in local, state and federal proceedings and presented testimony
before the Texas Legislature and many city councils. Marilyn is the President of Fox, Smolen & Associates,
Inc., (FSA) a firm that is a certified Historically Underutilized Business.
Since forming FSA in July 2001, the firm has organized and staffed governmental and commercial
electric aggregation projects and participated in an analysis of organizational and accounting modifications
that would be required to participate in the Electric Reliability Council of Texas (ERCOT) deregulated
market for two large municipally -owned electric utilities. The firm assisted in a valuation study for a large
publicly -owned utility's telecommunications assets. The firm completed a comparison of competitive
electricity rates in the ERCOT market with rates from municipally owned electric utilities. Marilyn has
worked with clients from the public and private sector on a variety of projects ranging from franchise fee
reviews to verifying customer bills from Retail Electric Providers. She filed testimony at the Public Utility
Commission of Texas (PUCT) in major rate cases and participated in various rulemaking workshops. She
also assisted in strategic planning for two large commercial companies considering entry into the deregulated
electric markets.
Marilyn was employed by the City of Austin and the City of Houston as Austin's Assistant Director
of the Finance and Administrative Department and Houston's Director of Regulatory Affairs from 1986
through 1998. Her responsibilities included regulating providers of telecommunication, cable, gas and
electric services, including Houston Lighting & Power, Southwestern Bell, and Time Warner Cable. She
processed rate filings by utilities at the city level and on appeal and monitored filings made with the PUCT
when the cities lacked original jurisdiction.
From 1981 to 1986, Marilyn was employed by the PUCT as the Assistant Director of the Accounting
Division and the Manager of Fuels Section of the Utility Evaluation Division. Her responsibilities included
reviewing and processing rate requests and fuel reconciliation applications filed with the Commission. She
presented experttestimony in administrative hearings before the PUCT and supervised accounting division
staff that processed rate filings. In 1983, she chaired the Commission's sub -committee that drafted the rules
and methods to implement to the change in fuel cost recovery. This methodology was basically followed by
the PUCT until the electric industry deregulation on January 2002,
Before joining the PUCT staff, she worked for El Paso Electric Company as a tax accountant from
1977 to 1981. She was responsible for filing the Company's federal and state tax return, franchise fee
reports, tax information included in the Company's rate filings, and preparation of tax related journal entries.
Marilyn J. Fox
(512) 322-9090 Ext.103
Paul N. Smolen
(512) 322-9090 Ext.102
Education
• Bachelor of Arts, Texas Tech University, 1970, History Major with Political Science and English
minors
• Post -graduate Work, Accounting and Business, The University of Texas at El Paso
Professional Certification and Memberships
• Certified Public Accountant since 1980 Certificate Number 22044
• Texas Society of CPAs
• American Institute of Certified Public Accountants
• Treasurer—Texas Electricity Professional Association
Marilyn J. Fox Paul N. Smolen
(512) 322-9090 Ext.103 (512) 322-9090 Ext.102