HomeMy WebLinkAbout04. Authorize new agreement with District Counsel Kent Alm Page 1 of 7 Item 4. CENTRAL SAN BOARD OF DIRECTORS POSITION PAPER MEETING DATE: AUGUST 6, 2020 SUBJECT: RESCIND THE CURRENT PROFESSIONAL SERVICES AGREEMENT WITH KENTON L. ALM, ESQ., FOR COUNSEL FOR THE DISTRICT SERVICES AND EXECUTE A NEW PROFESSIONAL SERVICES AGREEMENT, EFFECTIVE AUGUST 6, 2020 THROUGH DECEMBER 31, 2021 SUBMITTED BY: INITIATING DEPARTMENT: TEJI O-MALLEY, HUMAN RESOURCES OPERATIONS - POD - HUMAN RESOURCES MANAGER REVIEWED BY: ANN SASAKI, DEPUTY GENERAL MANAGER ROGER S. BAILEY, GENERAL MANAGER Roger S. Bailey General Manager ISSUE The Board of Directors has the authority to execute a professional services agreement with Kenton L. Alm, Esq., for Counsel for the District services effective August 6, 2020 through December 31, 2021. BACKGROUND The District has been receiving general legal services and Counsel for the District services from Kenton L. Alm, Esq., since 1986. From 2002 to 2019, Mr. Alm served the District as a principal in the firm of Meyers Nave. As of January 2019, Mr. Alm retired from Meyers Nave, at which point he was contracted directly by the District to act as Counsel for the District. This was in addition to a separate contract for Meyers Nave to provide backup Counsel for the District services, provide assistance to Mr. Alm, and provide specialty legal services on an as-needed basis. The District desires to continue engaging the services of Mr. Alm as Counsel for the District based upon his extensive experience and knowledge working with the District. To do so, the Board must rescind the August 6, 2020 Regular Board Meeting Agenda Packet- Page 22 of 107 Page 2 of 7 current agreement with Mr. Alm and execute a new proposed Professional Services Agreement (Attachment 1), including a rate adjustment, which will be effective August 6, 2020 to December 31, 2021. ALTERNATIVES/CONSIDERATIONS The Board could elect not to enter into the contract and issue a Request for Proposal for Counsel for the District services. This is not recommended at this time, as Mr. Alm has extensive experience and historical knowledge working with the District. FINANCIAL IMPACTS Per the proposed rate sheet (Attachment 2), Mr. Alm's proposed hourly rate for retainer services will increase from $220 to $230 and the retainer hours will increase from 68 to 72 which results in a monthly cost of $16,560 per month. The hourly rate of $235 for additional services remains unchanged. COMMITTEE RECOMMENDATION The Administration Committee did not review this matter. RECOMMENDED BOARD ACTION Rescind the current professional services agreement with Kenton L. Alm, Esq., for Counsel for the District services and execute a new professional services agreement, effective August 6, 2020 through December 31, 2021. Strategic Plan re-In GOAL FOUR: Workforce Development Strategy 1—Proactively plan for future operational staffing needs GOAL SIX: Innovation and Optimization Strategy 1—Implement the Central San Smart Initiative ATTACHMENTS: 1. Proposed Professional Services Agreement with Attachment 1 (Rate Sheet) August 6, 2020 Regular Board Meeting Agenda Packet- Page 23 of 107 Page 3 of 7 26 Hillcroft Way Kenton L.Alm Walnut Creek,California 94597 Attorney at Law (510)375-4571 August 6, 2020 Honorable Board of Directors Central Contra Costa Sanitary District 5019 Imhoff Place Martinez, California 94553 Re: Modified Engagement of Legal Services Dear Honorable Board of Directors: Thank you for your confidence in continuing to retain me, Kenton L. Alm, as your District Counsel. I will practice as sole practitioner as the law offices of Kenton L. Alm, ("Counsel") to perform legal services for Central Contra Costa Sanitary District ("District" or "Client"). I appreciate the opportunity and look forward to working with you under a new arrangement. This Engagement Letter of Legal Services (the "Agreement") sets forth the agreement concerning the legal services to be provided, conflict disclosure and waiver, and fee arrangements for those services. 1. Scope of Engagement. Counsel will provide legal services reasonably required to represent the District as its general counsel (District Counsel). Certain ordinary and reoccurring services as set forth under Retainer Services on Attachment 1 will be provided as set forth thereon. Additional legal services not falling within the scope of Retainer Services, or services for specific legal projects requiring substantial hours in excess of the hourly basis for retainer services set forth in Attachment 1, shall be provided if desired by the District and billed separately at the hourly rates also set forth on Attachment 1. If additional work is requested not falling within the ordinary and normal services provided by District Counsel, including work on a specific additional legal project, a Supplemental Letter of Legal Services confirming this additional work and associated terms shall bring it within the scope of this Agreement. 2. Fees and Personnel. As compensation for services, fees will be based on the billing rates set forth in Attachment 1. These rates and scope of services under the Retainer Services provision may be reviewed annually, with any agreed-upon changes effective January 1 of each year; however, it is agreed to enact the new rates in Attachment 1 effective the execution date of this agreement. August 6, 2020 Regular Board Meeting Agenda Packet- Page 24 of 107 Page 4 of 7 Honorable Board of Directors Central Contra Costa Sanitary District August 6, 2020 Page 2 Counsel will be in charge of the provision of outside legal services which may be provided for the District, with the exception of Labor and Employment matters. For so long as the District continues to contract with the Meyers Nave law firm, Counsel will rely on that firm to provide back-up for services Counsel may not be able to provide due to vacations or other unavailability, or for services which may more appropriately be provided by a Meyers Nave firm member with appropriate skills. If it is felt that other attorneys and/or paralegals should be assigned to work on District matters, then Counsel will be primarily responsible for directing their work. The general terms of Meyers Nave's engagement and its compensation shall be subject to a separate agreement between the District and Meyers Nave. 3. Authorized Representative. By signing below, the District's President of the Board of Directors represent that he is authorized to execute this Agreement and otherwise make decisions on the District's behalf. 4. Disbursements and Expenses. In addition to hourly fees, Counsel may incur out-of-pocket expenses related to the District's representation. Counsel will be reimbursed for certain outside services incurred in the course of providing legal services to the District. Outside services will include, but are not limited to, all third-party expenses, delivery charges, travel expenses, or outside research services. Specific arrangements will be agreed to for reimbursement in the event it becomes appropriate for Counsel to hire consultants or experts on behalf of the District. 5. Participation in California Association of Sanitation Agencies (CASA). The District agrees that it is in its best interest for Counsel to participate in CASA activities, and when possible and necessary to attend various meetings and conferences. The District will pay for or reimburse Counsel for reasonable travel expenses associated with such activities. 6. Billing and Payment Responsibilities. Counsel will send monthly statements which are due within thirty (30) days of receipt. If the District has any questions about an invoice, it is requested to promptly contact Counsel so that the matters may be discussed. 7. Termination of Services. The District may terminate Counsel's services at any time by sixty (60) days' written notice. After receiving such notice, Counsel will cease providing services in accordance with that notice. Termination of Counsel services, whether by the District will not relieve the obligation to pay for services rendered and costs incurred before Counsel's services formally ceased. Notwithstanding the foregoing, in the event that Counsel determines that he will no longer be able to provide District Counsel services due to full retirement, health concerns or other changes in circumstances, he will provide the maximum notice practical and not less than six (6) months' notice unless exigent health conditions were to prevent same. Counsel will cooperate fully with the District to facilitate the District's preferences in the process of selection of new counsel. August 6, 2020 Regular Board Meeting Agenda Packet- Page 25 of 107 Page 5 of 7 Honorable Board of Directors Central Contra Costa Sanitary District August 6, 2020 Page 3 8. Insurance. During the term of this engagement, Counsel shall take out and maintain general liability, auto and professional errors and omissions insurance, in amounts acceptable to the District. 9. Guarantee of Outcome. Any comments made by Counsel about the potential outcome of this matter are expressions of opinion only and are not guarantees or promises about any outcome or results. 10. Dispute Resolution. In the event the District becomes dissatisfied with any aspect of the relationship, Counsel encourages the District to bring such concerns to his attention immediately. If the dispute is unable to be resolved, either arising out of or in connection with this Agreement or relating to the services performed by Counsel, to Counsel and the District's mutual satisfaction, Counsel will first comply with any mandatory Bar Association dispute resolution procedures that may apply to any such dispute. 11. Entire Agreement; Full Understanding; Modifications in Writing. This Agreement contains the entire agreement about Counsel's representation. Any modifications or additions to this Agreement must be made in writing. 12. Conflicts/Waiver. Counsel is not aware of any potential conflicts regarding continued representation of the District. If any conflict were to arise, Counsel will promptly notify the District and follow the Rules of Professional Conduct for lawyers. If this Engagement Letter of Legal Services is consistent with your understanding of our respective responsibilities, please so indicate by returning a signed copy of this letter to me at your earliest convenience. Very truly yours, Kenton L. Alm Attorney at Law These terms are accepted and agreed to as of the date of this letter: Central Contra Costa Sanitary District By: Michael R. McGill President of the Board of Directors August 6, 2020 Regular Board Meeting Agenda Packet- Page 26 of 107 Page 6 of 7 Attachment 1 KENTON L. ALM, ESQ. RATE SHEET RATES Effective August 6, 2020 $230/hour— 72 hours Kenton L. Alm — Retainer $16,560/month Kenton L. Alm — Additional Services $235/hour Legal Assistance Actual rate to be reviewed by (Subconsultant to K. Alm) Central San prior to usage It is understood that Mr. Alm shall provide services as noted below as a sole proprietor, and back up will be provided by Meyers Nave for any extended periods when Mr. Alm is not available to provide Counsel for the District services. In any month where Mr. Alm is not available for a period of more than a full week, the retainer amount due Mr. Alm will be proportionately reduced to reflect that absence. Mr. Alm may make arrangements with the General Manager to provide legal services remotely without on-site office hours for a short period without incurring a proportionate reduction in the monthly retainer. Travel and Conference expenses shall be directly reimbursed per Central San's Administrative Procedure AP 008 — Travel Expense Reimbursement Procedure and are subject to advance approval by the General Manager. RETAINER SERVICES Retainer services for the purposes of this contract are defined as those certain Counsel for the District services that would ordinarily be required on a regular basis and which are anticipated to be performed within the seventy-two (72) hours per month of retainer time. The retainer specifically includes the following: a. Attendance at Central Contra Costa Sanitary District Board meetings, Agenda Review meetings, Board Committee meetings, and California Association of Sanitation Agencies Legislative meetings; b. Legislative review for California Association of Sanitation Agencies Legislative Committee and ordinary Counsel for the District services in support of wastewater related industry matters; C. All telephone calls, except calls on special legal assignments for which there is an authorization to bill separately; Page 1 of 2 August 6, 2020 Regular Board Meeting Agenda Packet- Page 27 of 107 ATTACHMENT 'l' d. Receipt and review of all correspondence, documents, faxes, and e-mails received or reviewed remotely, except on separately billed legal matters; e. Preparation and presentation of advice to the Board and Board Members (including customary ancillary activities related to representing the Board); f. Provision of a minimum of two (2) half-days of onsite office hours per week with the days and hours to be adjusted as needed to accommodate staff, Directors, and Counsel for the District; g. Management of outside counsel litigation services including providing coordination among Counsel for the District, staff, Board of Directors, and outside litigation counsel; h. Manage and coordinate services to be provided by Meyers Nave; i. Provision of other routine and typical Counsel for the District legal services; and j. Review of contracts for compliance with Central San's requirements and relevant legal requirements. This will focus primarily on: 1. Capital Improvement Projects; 2. Contracts originating from Purchasing; and 3. Contracts for services provided by consultants/vendors including contracts authorized by Board actions. Page 2 of 2 August 6, 2020 Regular Board Meeting Agenda Packet- Page 28 of 107