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HomeMy WebLinkAbout04. Meyers Nave Contract555 12`h Street, Suite 1500 Oakland, California 94607 tel (510) 808 -2000 fax (510) 444 -1108 www.meyersnave.com 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: Kenton L. Alm Attorney at Law kalm @meyersnave.com 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's 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, which 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 ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO +6 James A. Nejedly, 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, followingJanuary 31, 2015 at the hourly rates and retention fees set forth within Attachment L 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). 6. 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 we 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. 8. 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 PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO 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 counsel 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 counsel as 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, R.iback, Silver & Wilson 555 12,h Street, Suite 1500 Oakland, CA 94607 To the District: Board of Directors c/o General Manager Central Contra Costa Sanitary District 5019 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 LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO 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 PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO James A. Nejedly, 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 cope 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 tars, Kenton L. Alm 2051128.1 2051128.1 Attachments 661024.3 A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO James A. Nejedly, 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. Bv: C-- /,� Central Contra Costa Sanitary District Secretal• of the District r.laine Boehme A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO 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 legislative 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; 2051128_1.DOC (d) Initial receipt and review of all correspondence, documents, faxes and e- mails, except on assigned litigations matters; (e) Preparation of and presentation of advice to Board and Board Members (including customary ancillary activities related to representing the Board); (O(i) Eight 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 parry 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 time. 2057 i28 1.DOc ATTACHMENT 2 MEYERS, NAVE, RIBACK, SILVER & WILSON STATEMENT OF FEE AND BILLING INFORMATION The following is a general description of our fee and billing policies. These general policies may be modified by the specific engagement letter or agreement to which this summary is attached. Professional Fees. 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 line 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 2051 l28_1.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. Late 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. 2051 128_1.DOC