HomeMy WebLinkAbout03.e. Extend District Counsel contract for up to six months3.e.
Central Contra Costa Sanitary District
' BOARD OF DIRECTORS
POSITION PAPER
Board Meeting Date: February 5, 2015
Subject. APPROVE EXTENDING CURRENT CONTRACT FOR GENERAL LEGAL
SERVICES WITH DISTRICT COUNSEL KENTON L. ALM AND MEYERS,
NAVE, RIBACK, SILVER & WILSON ON A MONTH -TO -MONTH BASIS
COMMENCING FEBRUARY 1, 2015, UNTIL FURTHER BOARD ACTION
Submitted By: Initiating Dept. /Div.:
Elaine R. Boehme, CMC Administration
Secretary of the District
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
lwe v_
Roger S. Baile
General Manager
ISSUE: Extending the contract for general legal services with District Counsel
Kenton L. Alm and Meyers, Nave, Riback, Silver & Wilson requires approval by the
Board of Directors. The current contract expires on January 31, 2015.
RECOMMENDATION: Approve extending the current contract for general legal
services with District Counsel Kenton L. Alm and Meyers, Nave, Riback, Silver & Wilson
on a month -to -month basis commencing February 1, 2015 for up to six months, until
further Board action.
FINANCIAL IMPACTS: No rate increase is proposed in the extension.
ALTERNATIVES /CONSIDERATIONS: The Board could elect not to extend the
contract for legal services. This is not recommended.
BACKGROUND: The District has been receiving general legal services and Counsel
for the District services from Mr. Kenton L. Alm of Meyers, Nave, Riback, Silver and
Wilson since 1985 by a contractual arrangement. The term of the current two -year
contract expires on January 31, 2015.
Minor modifications to the contract terms are under consideration at this time and the
Administration Committee will review the contract in February. Once that review is
complete and Meyers Nave has reviewed the proposed changes, an updated contract
will be scheduled for Board consideration. The purpose of this month -to -month
extension is to bridge the gap between the current contract expiration date and the date
that the Board considers a new contract. The contract terms and conditions during the
extension period will remain as they are at present.
COMMITTEE RECOMMENDATION: This proposed month -to -month contract
extension was not reviewed by a Board Committee.
N:\ADMINSUP\ADMIN \DIST- SEC \Position Papers\2015 \PP- Month -to -Month Ext. District Counsel Contract 2 -5 -15 (Draft).docx
Page 1 of 2
POSITION PAPER
Board Meeting Date: February 5, 2015
subject: APPROVE EXTENDING CURRENT CONTRACT FOR GENERAL LEGAL
SERVICES WITH DISTRICT COUNSEL KENTON L. ALM AND MEYERS,
NAVE, RIBACK, SILVER & WILSON ON A MONTH -TO -MONTH BASIS
COMMENCING FEBRUARY 1, 2015, UNTIL FURTHER BOARD ACTION
RECOMMENDED BOARD ACTION: Approve extending the current contract for
general legal services with District Counsel Kenton L. Alm and Meyers, Nave, Riback,
Silver & Wilson on a month -to -month basis commencing February 1, 2015 for up to six
months, until further Board action.
Attached Supportinq Document:
1. Letter from Meyers Nave
N: IADMINSUPIADMINI DIST- SECIPosition Papers120151PP- Month -to -Month Ext District Counsel Contract 2 -5 -15 (Draft).docx
ATTACHMENT 1
55512" Street, Suite 1500
Kenton L. Aim
Oakland, California 94607
Attorney at Law
tel (510) 808 -2000
Direct Dial: (510) 808 -2081
fax (510) 444 -1108
kaim @meyersnave.com
www.meyersnave.com
meyersi nave
January 28, 2015
Michael R. McGill, Board President
Honorable Board Members
CENTRAL CONTRA COSTA SANITARY DISTRICT
5019 Imhoff Place
Martinez, CA 94553
Re: Engagement of Legal Services
Dear Board President and Board Members:
As you are aware, the Legal Services contract between Central Contra Costa Sanitary District
( "District ") and Meyers, Nave, Riback, Silver & Wilson ( "Meyers Nave ") technically expires
on February 1, 2015. Meyers Nave and I continue to appreciate the opportunity to serve as
your District Counsel and I look forward to working with you in the future. Accordingly, a
short term month -to -month extension appears to facilitate the needs of both the District and
Meyers Nave.
This letter sets forth the terms and conditions of a month -to -month extension to the current
agreement for legal services dated February 14, 2013, ( "Agreement "). A copy of which is
attached as Exhibit "A."
Paragraph 2 of the Agreement is amended as follows:
Meyers Nave shall serve as the District Counsel and provide such legal
services from February 1, 2013 through January 31, 2015 in accord with the
hourly rates and retainer fees and definitions set forth in Attachment 1. This
agreement may be extended by unilateral action of the. District for an
additional two years, or annually for two additional years, following
January 31, 2015 at the hourly rates and retention fees set forth within
Attachment 1.
This Agreement is hereby extended on a month -to -month basis beginning -
February 1. 2015, and continuing thereafter on a month -to -month basis not to
exceed six (6) months while the terms of a new agreement are negotiated
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO
Michael R. McGill, Board President
Honorable Board Members
CENTRAL, CONTRA COSTA SANITARY DISTRICT
January 28, 2015
Page 2
All other terms and conditions of the Agreement shall remain in full force and effect.
Nothing contained herein shall be construed as amending or modifying any other terms or
conditions of the Agreement.
This extension will also provide sufficient time for me and Meyers Nave to address the issues
raised in the recently performed evaluation including issues such as transition planning for
Meyers Nave and my role in the future years.
If the above terms are consistent with your understanding of our respective responsibilities,
please sign below and return this Agreement to me.
Thank you for allowing us the continued opportunity to serve as your lawyers.
Very truly yours,
Eat.,
Kenton L. Alm
Attorney at Law
These above terms and conditions are accepted and agreed to as of the date of this letter.
CENTRAL CONTRA COSTA SANITARY
DISTRICT
L-In
ACKNOWLEDGED:
Elaine Boehme
Secretary of the District
Michael R. McGill, President
Board of Directors
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO
Exhibit "'A"
Agreement for legal services dated February 14, 2013
meyers I nave
February 14, 2013
Via Electronic Mail
James A. Nejedly, Board President
Honorable Board Members
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Re: Engagement ofLegal Services
Dear Board Members:
55512'" Street, suite 1500
Oakland, California 94607
tel (510) 808.2000
fax(510)444 -1108
www.meyersnove.com
Kenton L. Alm
Attorney at law
kalm @meyersnavexom
Thank you for continuing to retain Meyers, Nave, Riback, Silver & Wilson ("Meyers Nave')
to perform legal services in connection with the Central Contra Costa Sanitary District
(" CCCSD or the District") of which you are the Board President. We continue to appreciate
the opportunity to serve as your lawyers and look forward to working with you.
This letter sets forth the terms of an extensions of the current agreement for legal services
we will provide and our fee arrangements for those services. It continues the existing
arrangement for two (2) years with minor modifications requested by staff and the Board Ad
Hoc Committee.
1. Scope of Engagement. We will provide legal services as required by law and as
directed by the District, and will attend meetings of the Board Directors, Agenda Review,
Risk Management and other staffed and Board Committee meetings on an as needed basis.
We will provide the legal services reasonably required to represent and advise the District in
connection with public law, environmental matters, administrative matters, public works
construction and such other matters as would be subject of general counsel services. We will
provide on -site District Counsel Services for one day per week (eight hours per week)
pursuant to an agreed upon schedule. We will also provide legal services for additional
matters, including litigation, wlvch you request of us, provided we agree to perform that
work. Any litigation services or special assignment to be provided by Meyers Nave shall be
pursuant to the terms of this agreement, unless a written document modifies the terms of
this agreement for such litigation assignments.
2. Term of Agreement. Meyers Nave shall serve as the District Counsel and provide
such legal services from February 1, 2013 through January 31, 2015 in accord with the hourly
rates and retainer fees and definitions set forth in Attachment 1. This agreement may be
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANOELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO
James A. NeJediy, Board President
February 14, 2013
Page 2
extended by unilateral action of the District for an additional two years, or annually for two
additional years, following January 31, 2015 at the hourly rates and retention fees set forth
within Attachment 1.
3. Fees and Personnel. As compensation for our services, our fees will be based on
our current billing rate for the personnel performing services under this agreement at the
time such services are rendered for hourly work and services for retainer work shall be as
specified. Billing rates for attorneys and paralegals hourly and for retainer work, are set forth
in attachment 1.
Kenton L. Alm will be the principal in charge of representing your interests as District
Counsel and will be the primary person providing on site services. If other attorneys and /or
paralegals are assigned to work on your matter, the then current hourly rates of those
individuals will be utilized for assignments not covered by the retention. This agreement
retains the legal services of our law firm. The hourly rates and retainer fees are subject to
change, during the term of this agreement as set forth in Attachment 1.
4. Basis for Fees. Any adjustment to the fees set forth in „attachment 1 must be
agreed to in writing by the District and Meyers Nave. While the hourly rates are the most
important factor we use in determining fees for legal services, the amount we actually charge
may be adjusted to reflect a variety of these factors, including any unusual time constraints
or other special demands imposed by the engagement, the novelty or complexity of the
issues raised, efficiencies achieved by us, the amounts involved and the results obtained.
5. Disbursements and Expenses. In addition to hourly fees, we may incur out -of-
pocket expenses related to your representation. Our Statement of Fee and Billing
Information, which sets forth the details of our disbursement and expense policy, is attached
(Attachment 2).
G. Billing and Payment Responsibilities. We will send monthly statements which
are due within 30 days of receipt. If you have any questions about an invoice, please
promptly telephone or write me so that we may discuss these matters. Our Statement of Fee
and Billing Information sets forth the details of our fee and billing policy.
7. Termination of Services. You may terminate our services at any time by giving 60
days written notice. After receiving such notice, we will be providing such services as
directed and otherwise cease providing services. We will cooperate with you in the orderly
transfer of all related files and records to your new counsel.
We may terminate our services at any time with your consent or for good cause on 90 days
written notice. Good cause exists if (a) any statement is not paid within 60 days of its date,
(b) you fail to meet any other obligation under this agreement and continue in that failure for
15 days after we send written notice to you; (c) you have misrepresented or failed to disclose
material facts to us, refused to cooperate with us, refused to follow our advice on a material
A PROFESSIONAL LAW CORPORATION OAKLANO LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO
James A. Nejedly, Board President
February 14, 2013
Page 3
matter, or otherwise made our representation unreasonably difficult; or (d) any other
circumstance exists in which ethical rules of the legal profession mandate or permit
termination, including situations where a conflict of interest arising. If Nve terminate our
services, you agree to execute a substitution of attorneys promptly and otherwise cooperate
in effecting that termination.
Termination of our services, whether by you or by us, will not relieve the obligation to pay
for services rendered and costs incurred before our services formally ceased.
$, Insurance. During the term of this engagement, this law firm shall take out and
maintain general liability and property damage insurance in the amount of $1,000,000;
professional errors and omissions insurance, in an amount of $2,000,000 per occurrence; and
$4,000,000 aggregate, which insurance may not be canceled or reduced in required limits of
liability unless at least ten days advance written notice be given to you.
Automobile insurance coverage will be provided by Meyers Nave through its general liability
coverage or by the individual members of Meyers Nave pursuant to their personal
automobile policies, and such coverage shall be at levels acceptable to the District.
9. Indemnification. Neither the District nor Meyers Nave shall be required to
indemnify the other party to this Agreement as specifically set forth herein. Nothing in this
Agreement, with the exception of the specific terms of this paragraph, is intended to limit or
alter the rights of each party against the other party as such rights may exist under the laws
of the State of California.
When, and only when the District requests Meyers Nave to retain the services of a
consultant on behalf of the District, then the District agrees to indemnify and hold harmless
the Meyers Nave, its agents and employees, for any expense, loss, or damage, including
attorneys' fees, to which the Meyers Nave may be subjected arising from any suit or claim,
which suit or claim arises out of Meyers, Nave engaging said consultant's services on behalf
of the District.
10. Confidential Relationship. All dealings of the parties under this Agreement shall
be confidential and no report, data, information, or communication developed, prepared, or
assembled by District Counsel under this Agreement shall be revealed, disseminated, or
made available by Meyers Nave to any person or organization other than the District
without the prior knowledge and concurrence of the District. This confidentiality provision
shall not extend to documents which are subject to public review under the California Public
Records Act (Government Code Section 6250, et seq.)
11. Exempt Employee Status. Pursuant to Chapter 2.16.020 of the District Code,
District Counsel shall act as attorney for the District in all matters affecting the affairs and
administration of the District, except in those matters where special counsel are from time to
time retained for specific responsibilities. However, neither Meyers Nave nor any members
A PROMSMNAL LAW CORPOUVON OAKLAND LOS AMMS SUAAJA[NTO SAN FRANUSCO SANYA AO$A iMESNO
James A. Nejedly, Board President
February 14, 2013
Page 4
of its staff shall be employees of the District. All activities performed by Meyers Nave
pursuant to this Agreement shall be performed as an independent contractor. The District
will not be required to pay Workmen's Compensation benefits for Counsel or any firm
member of Meyers Nave.
12. Joint Representation. Our firm maintains of caNnse1 agreements with certain legal
specialists. Because these individuals are deemed independent contractors under the
applicable provisions of the tax laws and not employees of the firm, it is necessary that you
consent to dual representation by the firm and the specialist in the event any matter which
you have engaged us to handle requires the use of that specialist. This arrangement has no
affect whatsoever on the cost of your legal services, rather it is an ethical requirement that
we disclose this fact and that you consent. You are consenting by signing this letter.
13. Assignment and Laws. Meyers Nave shall not subcontract any of the work or
assign any of its rights or obligations without the prior written consent of the District other
than assignment of work to of rorrruetas provided for in Paragraph 12 above.
14. Notices. All notice or other official correspondence relating to contractual matters
between the parties hereto shall be made by depositing same in first- class, postage -paid mail
addressed as follows:
To Counsel for the District: Kenton L. Alm
Meyers, Nave, Rihack, Silver & Wilson
555 12d- Street, Suite 1540
Oakland, CA 94607
To the District: Board of Directors
c/o General Manager
Central Contra Costa Sanitary District
501.9 Imhoff Place
Martinez, CA 94553
or to such other address as either party may designate hereinafter in writing delivered to the
other party.
15. Records. Meyers Nave shall at time keep a complete and thorough record of the
time expended in performing services on behalf of the District as herein agreed upon and
Meyers Nave shall also make available to the District for audit all of such records so
maintained for a period of 7 years from the date of performance if services.
16. Article Headings. Article headings in this Agreement are for convenience only and
are not intended to be used in interpreting or construing the terms, convenants, and
conditions of this Agreement.
A PROFESSIONAL tAW CORYORATKNA OAKLAND tOS A"W$ SACRAMENTO S" f"NtlSCO SANTA ROSA FRESNO
James A. Nejedly, Board President
February 14, 2013
Page 5
17. Survival. Notwithstanding the District's acceptance of the services or termination
thereof and payment therefore, Meyers Nave shall remain obligated under all clauses of this
Agreement which expressly or by their nature extend beyond and survive such acceptance,
termination and payment.
Notwithstanding the acceptance of the services of Meyers Nave or termination thereof and
payment therefore, the District shall remain obligated under all clauses of this Agreement
which expressly or by their nature extend beyond and survive such acceptance, termination
and payment.
18. Attorney's Fees. In the event of a dispute arises under this agreement which results
in a judgment or final arbitrator's decision, reasonable attorney's fees and costs may be
awarded to the prevailing party.
19. Entire Agreement; Full Understanding; Modifications in Writing. This letter
contains our entire agreement about our representation. Any modifications or additions to
this letter agreement must be made in writing.
20. Conflicts. Our firm represents many public agencies in California. The services
provided under this Agreement are for the benefit of the District only. Though we do
represent many other public entities, Meyers Nave is not aware of any actual conflicts
pending matters where the firm represents clients in matters adverse to the District.
Since 1986, we have represented over five hundred public clients, including numerous cities,
redevelopment agencies, special districts, counties and other public entities, and we are
accepting new engagements all the time. Meyers Nave performs a variety of professional
services for its clients and it is possible that we will represent clients on other matters with
objectives or positions inconsistent with those of the District. Ordinarily, continuing to
represent the District would not create an actual legal conflict. If an actual conflict of
interest does arise; however, we will promptly advise the District of the legal conflict of.
interest and obtain a waiver of the conflict from the District and other entity. Alternatively,
if the situation requires it, we will withdraw from representing either the other party, the
District, or both as may be required by the Bar Rules concerning legal ethics.
By signing and returning this agreement to us, you acknowledge that we have discussed these
matters and you confirm that District does not object to our representation of clients on
matters where their legal, governmental or political objectives and /or positions may be
different from or adverse to those of District, and that District consents to our
representation of such clients with differing legal, governmental or political interests where
no actual legal conflict of interest exists. While you would certainly be free to terminate our
relationship, you agree that this firm nonetheless would be free to represent such clients
even on those matters which you consider inconsistent with your objectives or views
provided that no actual legal conflict of interest exists.
A PROFESSIONA6 LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO
James A. Nejediy, Board President
February 14, 2013
Page 6
These acknowledgments do not permit our firm to represent another client in opposing any
matter for which we have provided legal advice without your specific written legal consent.
If this letter agreement is consistent with your understanding of our respective
responsibilities, please sign below and return this letter agreement to me. An additional copy
of this letter is enclosed for your records. Again, we thank you for allowing us the
opportunity to serve as your lawyers.
Very truly y ars,
Kenton L. Alm
2051128.1
2051128.1 Attachments
661024.3
A PROFESSIONAL UAW CORFdR ?M OAKLAND LOS ANGM SACRAMLENTO SAN FRANCISCO SANTA MOSA FRESNO
James A. Neledly, Board President
February 14, 2013
Page 7
These terms are accepted and agreed to as of the date of this letter by the Central Contra
Costa Sanitary District.
By
Central : ntra Costa Sanitary Dis ct
James A. Nejedly, President
Board of Directors
Acknowledged.
By:
Central Contra Costa Sanitary District
Secretary of the District
i ;laine Boehme
A MOPESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN PBANCiSCO SANTA ROSA FRESNO
ATTACHMENT 1
MEYERS, NAVE, RIBACK, SILVER & WILSON
RATE SHEET
Year 1(February 1, 2013 to January 31, 2015)
Sr. or Equity Principal
(Kenton L. Alm)
$305 _
Principal
$255
Sr. Of Counsel
$295
Sr. Associate
$235
Jr. Associate
$225
Paralegal
$120
Law Clerk
$160
Blended Hourly Rate /Retainer
$270
The hourly rates set forth above will be reviewed and amended annually as of February
of each year. For the contract year beginning February 1, 2014, the rates will be adjusted
by the same indexed amount as is provided to District Local 1 employees for the
immediately prior MOU adjustment, if any. For each year of adjustment, the rates for
each category shall be computed by the District and approved by Meyers Nave
consistent with this methodology. At the opinion of the District, the rates can be
rounded to the nearest $5 increment.
Retainer Services will be billed on the basis of the `Blended Hourly Rate /Retainer"
services category set forth above and escalated as set forth for other hourly rates.
"Retainer Services" for the purposes of this Agreement are defined as those certain
services that are customarily provided on a regular basis and specifically include the
following:
(a) Attendance at and preparation for board meetings, agenda review meetings,
board committee meetings, risk management meetings, engineering legal
meetings, CASA conferences and CASA legislative meetings;
(b) All legislativc review and comment and support activity for CASA and other
ordinary District Counsel services in support of wastewater related industry
groups (no compensation is provided for attendance at CASA conferences or
other industry conferences unless preapproved);
(c) All telephone calls lasting less than 12 minutes and /or the first 12 minutes of
telephone calls exceeding 12 minutes in length, excepting calls on assigned
litigations matters;
205 t 128_LDOC
(d) Initial receipt and review of all correspondence, documents, faxes and a -mails,
except on assigned litigations matters;
(e) Preparation of and presentation of advice to Board and Hoard Members
(including customary ancillary activities related to representing the Board);
(O(j) Fight hours per week of on -site { "District Counsel Office Hours ") legal services
to be primarily provided by Kenton Alm with assistance by an attorney
acceptable to the District. "On- Site" legal services or District Counsel office
hours shall be provided based on flat four hour charges without compensation to
the firm for travel to and from the District site.
"Retainer Services" will initially be billed at the blended hourly rate based on 60 hours
per month. Either party to this Agreement can on six -month intervals ask that this
hourly amount be evaluated and adjusted to reasonably reflect ongoing use of Retainer
Services, including adjustments to the services included, such as District on -site office
hours. A commensurate adjustment to the retainer fee will be implemented at that tune.
2051 128 1:DOC
ATTACHMENT 2
MEYERS, NAVE, RIBACK, SILVER & WILSON
STATEMENT OF FEE AND BILLING INFORMATION
The following is a general description of out fee and billing policies. These general
policies may be modified by the specific engagement letter or agreement to which this
summary is attached.
Professional Dees. Our fees for professional services are based on the fair value of the
services rendered. To help us determine the value of our services, our attorneys and
paralegals maintain time records for each client and matter. Our attorneys and paralegals
are assigned hourly rates which are based on years of experience, specialization, training
and level of professional attainment We adjust our rates periodically (usually at the
beginning of each year) to take into account inflation and the increased experience of our
professional personnel.
To keep professional fees at a minimum, legal work that does not require more
experienced attorneys will be performed, where feasible, by attorneys with lower billing
rates. Of course, the quality of the work is paramount, and we do not sacrifice quality to
economy.
Before undertaking a particular assignment, we will, if requested, provide you with a fee
estimate to the extent possible, Estimates are not possible for some matters, however,
and cannot be relied on in many others because the scope of our work will not be clear
at the outset. When a fee estimate is given, it is only an estimate; it is not a maximum or
minimum fee quotation. The actual fee may be more or less than the quoted estimate.
Billing And Payment Procedures. Unless other arrangements are made at the time of the
engagement, invoices will be sent monthly. Invoices for outside services exceeding $100
may be billed separately. Occasionally, however, we may defer billing for a given month
or months if the accrued fees and costs do not warrant current billing or if other
circumstances would make it appropriate to defer billing.
Our invoices contain a brief narrative description of the work performed; if requested,
the initials of the attorney who performed the work will appear on the statement. The
invoice will include a fine item reflecting in-house administrative costs. The firm's in-
house administrative costs include, but are not limited to, duplicating, facsimile charges,
telephone charges, E-mail, postage, mileage and other administrative expenses. We have
determined that the most effective method of accounting for these administrative costs is
to charge a flat 3% of the professional fees incurred.
The firm will be reimbursed for all outside services incurred in the course of providing
legal services to our client(s). Outside services will include, but are not limited to, all
2051128I.DOC
third -party expenses, delivery charges, travel expenses outside of the San Francisco Bay
Area, outside research services, filing fees, expert witness and expert consultant fees.
If you have any questions regarding an invoice, the billing manager, controller or
shareholder in charge are available to answer your questions. For any unresolved
matters, the Bar Association has an arbitration mechanism that can be used to resolve
such matters.
hate payments. Statements for services are payable upon presentation and, in all events,
within thirty (30) days after receipt. Occasionally a client has difficulty in making timely
payments. To avoid burdening those clients who pay their statements promptly with the
added costs we incur as a result of late payments, a late charge will be assessed on
statements not paid within thirty (30) days. The maximum monthly late payment charge
will be 1.5% per month. In the unlikely event we are required to institute legal
proceedings to collect fees and costs, the prevailing party will be entitled to reasonable
attorneys" fees and other costs of collection.
20511 28-1,DOC