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HomeMy WebLinkAbout04. Draft PP for renewal of general legal servicesy. Central Contra Costa Sanitary District BOARD OF DIRECTORS POSITION PAPER Board Meeting Date: July 9, 2015 Subject., RENEWAL AND AMENDMENT OF THE CONTRACT FOR LEGAL SERVICES WITH KENTON L. ALM AND MEYERS, NAVE, RIBACK, SILVER & WILSON FOR THE THREE -YEAR PERIQi'aFNDING DECEMBER 31, 2018 Submitted By. Initiating Dept. /E iir Teji O'Malley Plant Opera #ions Dfiaton Human Resources Manager REVIEWED AND RECOMMENDED FOR BOARD ACTION Roger S. Bailey General Manager ISSUE: Renewal and /or amendment the contract for legelr';seryices with Kenton L. Alm, Esq. and Meyers, Nave, Riback, 841ver,` on requires,--approval by the Board of Directors. k ° Q RECOMMENDATION, ,R ";,ihe contracfriith Mr. Ali and Meyers Nave for legal services through December 3'1.2,018. FINANCIAL IMPACTS It_.is pr tascd that the burly rates be increased as shown in x the table below..... -�,.. ... ALTERh1ATIVES for led services. The Di for the District 4rvices arrangement. ii term 2015, through Dec "tnbf the contract beyond'b6 : The Board could elect not to renew the contract het has been receiving general legal services and Counsel ",_Mr. Alm and Meyers Nave since 1985 by a contractual the proposed contract renewal is three years, from June 1, 1, 2018. Additionally, the District has the option to extend fiber 31, 2018 for two additional one -year terms. The District's current contract for legal services with Mr. Alm and Meyers Nave expired January 31, 2015; however, the Board extended the contract commencing February 1, 2015 on a month -to -month basis as necessary to give the Administration Committee an opportunity to review the existing contract. On February 9, March 9, April 6 and 20, May 26, and June 8, 2015, the Administration Committee discussed proposed terms for inclusion in a renewed /amended District Counsel contract. The Committee recommended that the Board adopt several Page 1 of 3 POSITION PAPER Board Meeting Date: July 9, 2015 subject: RENEWAL AND AMENDMENT OF THE CONTRACT FOR LEGAL SERVICES WITH KENTON L. ALM AND MEYERS, NAVE, RIBACK, SILVER & WILSON FOR THE THREE -YEAR PERIOD ENDING DECEMBER 31, 2018 amendments to the existing contract and extend the term by an additional three years. A summary of proposed amendments follows: Retainer: The current monthly retainer is based on 60 hours per month. An increase to 66 hours per month is proposed to reflect the increase in District Counsel office hours. It is proposed that the retainer be increased to $20,900 p month to reflect the increase in hours as well as the increase in rates. Hourly Rates: Hourly rates have been modified as reflected i °floe table below: Rates effective une 1.2015 Kenton L. Alm Senior or Equity Principal Principal $280 Sr. of Counsel Sr. Associate. e $250 Jr. associate 1 $240 $130 $170 $20,900 Flat Retair, (66 hours a month) : The Administration Committee recommended approval of the co RECOMMENDED BOARD ACTION: Renew the contract for legal services with Meyers, Nave, Riback, Silver & Wilson and Senior Principal Kenton L. Alm, Esq. for the period June 1, 2015 through December 31, 2018. N:\NDMINSUP\ADMIN \DIST- SEC \Legal Contract PP (TKO edits).docx Page 2 of 3 POSITION PAPER Board Meeting Date: July 9, 2015 subject. RENEWAL AND AMENDMENT OF THE CONTRACT FOR LEGAL SERVICES WITH KENTON L. ALM AND MEYERS, NAVE, RIBACK, SILVER & WILSON FOR THE THREE -YEAR PERIOD ENDING DECEMBER 31, 2018 Attached Supporting Documents: 1. Draft Contract N:WDMINSUP\ADMIN \DIST- SEC \Legal Contract PP (TKO edits).docx Page 3 of 3 July 9, 2015 Michael R. McGill, Board President Board Members CENTRAL CONTRA COSTA SANITARY DISTRICT 5019 Imhoff Place Martinez, CA 94553 Re: Engagement of Legal Services Dear Board Members: Thank you for continuing to retain Meyers, Nave, Riback, Silver & Wilson ( "Meyers Nave ") to perform legal services in connection with Central Contra Costa Sanitary District ( "District "). We continue to appreciate the opportunity to serve as your lawyers and we look forward to working with you. This letter sets forth the terms of an extension of the current agreement for legal services Meyers Nave will provide and our fee arrangements for those services. It continues much of the existing arrangement with modifications requested by Staff and the Board Administration Committee. Scope of Engagement. Meyers Nave will provide legal services as required by law and as directed by the District, and Meyers Nave will attend meetings of the Board of Directors, Agenda Review, Risk Management and other staffed and Board Committee meetings on an as needed basis. Meyers Nave 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 onsite District Counsel Services three (3) half days per week (twelve (12) hours per week) pursuant to a schedule agreed upon by District Staff. Meyers Nave will also provide legal services for additional matters including litigation, provided that we mutually agree. Any litigation services or special assignments 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 or special assignments. 2. Term of Agreement. Meyers Nave shall serve as District Counsel and provide such legal services from June 1, 2015, through December 31, 2018, in accordance with the hourly rates, retainer fees and definitions set forth in Attachment 1. This agreement may be extended by unilateral action of the District annually for two (2) additional years, following December 31, 2018, at the hourly rates and retention fees set forth within Attachment 1. Page 1 3. Fees and Personnel. As compensation for our services; Meyers Nave's 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 the District's interests as District Counsel and will be the primary person providing onsite services. An experienced partner level firm member acceptable to the District will be assigned as one of Mr. Alm's primary backups in order to initiate the process to provide for the transfer of institutional knowledge as a factor in transition planning. In addition, an associate - level attorney acceptable to the District will also be assigned to provide alternative coverage for office hours and typical staff work. If other attorneys and /or paralegals are assigned to work on the District's matters, 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, with the agreement of the District, 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 or lack of efficiencies achieved by us, the amounts involved and the results obtained. 5. Disbursements and Expenses. In addition to hourly fees, Meyers Nave may incur out - of- pocket expenses related to the District's representation. Meyers Nave's Statement of Fee and Billing Information, which sets forth the details of our disbursement and expense policy, is detailed in Attachment 2. 6. Billing and Payment Responsibilities. Meyers Nave will send monthly statements which are due within thirty (30) days of receipt. If the District has any questions about an invoice, please promptly telephone, email or write to me so that we may discuss these matters. Meyers Nave's Statement of Fee and Billing Information sets forth the details of our fee and billing policy. 7. Termination of Services. The District may terminate Meyers Nave's services at any time by giving sixty (60) days' written notice. After receiving such notice, Meyers Nave will be providing such services as directed and otherwise cease providing services. Meyers Nave will cooperate with the District in the orderly transfer of all related files and records to the District's new counsel. Meyers Nave may terminate our services at any time with the District's consent or for good cause on ninety (90) days' written notice. Good cause exists if (a) any statement is Page 2 not paid within sixty (60) days of its date; (b) the District fails to meet any other obligation under this agreement and continues in that failure for fifteen (15) days after we send written notice to the District; (c) the District has misrepresented or failed to disclose material facts to Meyers Nave, refused to cooperate with Meyers Nave, refused to follow our advice on a material 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 arises. If we terminate our services, the District agrees to execute a substitution of attorneys promptly and otherwise cooperate in effecting that termination. Termination of our services, whether by the District or by Meyers Nave, 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, Meyers Nave 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 (10) days advance written notice be given to the District. 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 except 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 Meyers Nave, its agents and employees, for any expense, loss, or damage, including attorneys' fees, to which 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. Meyers Nave shall indemnify, defend, and hold harmless the District and District Personnel from any claim, liability, loss, injury or damage arising out of personal injury, including death, and /or property damage arising from the performance of this agreement by Meyers Nave and /or its agents, employees, or sub - contractors. Meyers Nave's indemnity obligation shall be limited to its proportionate share of liability to the extent both it and the District have some liability and shall not include responsibility for consequential damages. Page 3 If any dispute between Meyers Nave and the District occurs with regard to its obligation to defend, such as first cost of defense and cross claims, Meyers Nave and the District agree to promptly meet and confer to discuss in good faith resolution of the disputed issues and potentially related issues of cooperation and joint defense. To the extent that good faith meet and confer negotiations have occurred and Meyers Nave does not fulfill this obligation to indemnify, defend and hold harmless the District and District Personnel, the District may litigate the issue of the Meyers Nave's indemnification obligation. If Meyers Nave is deemed to be responsible or liable for the obligation, Meyers Nave shall reimburse the District for all costs, attorneys' fees, expenses and liabilities incurred with respect to any such litigation. This obligation to indemnify shall not be interpreted to limit any other rights or remedies available to the District whether in contract, tort or otherwise. 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 sec .) 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 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. Meyers Nave 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 the District consents to dual representation by Meyers Nave and the specialist in the event any matter which the District has engaged Meyers Nave to handle requires the use of that specialist. This arrangement has no effect whatsoever on the cost of the District's legal services, rather it is an ethical requirement that we disclose this fact and that the District consents. The District is 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, Page 4 mail addressed as follows or to such other address as either party may designate hereinafter in writing delivered to the other party. To District Counsel: Kenton L. Alm MEYERS, NAVE, RIBACK, SILVER & WILSON 555 12th 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 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 seven (7) years from the date of performance of 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, covenants, and conditions of this agreement. 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. Meyers Nave 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 Page 5 pending matters where Meyers Nave represents clients in matters adverse to the District, excepting any such matters where conflict waivers have been executed. Since 1986, Meyers Nave has represented over 500 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 Meyers Nave, the District acknowledges that we have discussed these matters and you confirm that the 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 the District, and that the District consents to Meyers Nave's representation of such clients with differing legal, governmental or political interests where no actual legal conflict of interest exists. While the District would certainly be free to terminate our relationship, the District agrees that Meyers Nave nonetheless would be free to represent such clients even on those matters which the District considers inconsistent with the District's objectives or views provided that no actual legal conflict of interest exists. These acknowledgments do not permit Meyers Nave to represent another client in opposing any matter for which we have provided legal advice without the District's specific written legal consent. If this letter agreement is consistent with the District's understanding of our respective responsibilities, please sign below and return this letter agreement to us. Again, we thank you for allowing us the opportunity to serve as your lawyers. Very truly yours, Kenton L. Alm Attorney at Law These terms are accepted and agreed to as of the date of this letter by Central Contra Costa Sanitary District. CENTRAL CONTRA COSTA SANITARY DISTRICT Page 6 i Michael R. McGill Board of Directors President Acknowledged: CENTRAL CONTRA COSTA SANITARY DISTRICT Elaine Boehme Secretary of the District 2051128.2 Page 7 ATTACHMENT 1 *The hourly rates set forth above will be reviewed annually in January of each year. Changes in rates for each category may be requested by Meyers Nave and all modifications will be subject to approval of District. 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 (upon request), risk management meetings 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; Page 8 Rates effective June 1, 2015 Kenton L. Alm Senior or Equity Principal $325 Principal $280 Sr. of Counsel $305 Sr. Associate $250 Jr. Associate $240 Paralegal $130 Law Clerk $170 Flat Retainer $20,900 (66 hours a month) *The hourly rates set forth above will be reviewed annually in January of each year. Changes in rates for each category may be requested by Meyers Nave and all modifications will be subject to approval of District. 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 (upon request), risk management meetings 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; Page 8 (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), excluding; (f) Twelve (12) hours per week of onsite (District Counsel Office Hours) legal services to be provided by Kenton L. Alm with assistance of a partner level attorney and an assigned associate level attorney, acceptable to the District. Retainer Services will initially be billed at the blended hourly rate based on sixty -six (66) hours per month. Either party to this Agreement can on six (6) 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 onsite office hours. A commensurate adjustment to the retainer fee will be implemented at that time. Page 9 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 One Hundred Dollars ($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, email, 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 three percent (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 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. Page 10 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 percent 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. 2430429.1 Page 11