HomeMy WebLinkAbout03.b. Professional Services Contract with Burke, Williams & Sorensen, LLP for District Counsel ServicesPage 1 of 12
Item 3.b.
DCENTRALSAN
MEETING DATE: SEPTEMBER 5, 2023
BOARD OF DIRECTORS
POSITION PAPER
DRAFT
SUBJECT: REVIEW DRAFT POSITION PAPER TO AUTHORIZE THE GENERAL
MANAGER TO EXECUTE A PROFESSIONAL SERVICES CONTRACT
WITH BURKE, WILLIAMS & SORENSEN, LLP. FOR DISTRICT COUNSEL
SERVICES
SUBMITTED BY: INITIATING DEPARTMENT:
PHILIP LEIBER, DEPUTYGENERAL DEPUTYGENERAL MANAGER
MANAGER, ADMINISTRATION
REVIEWED BY: ROGER S. BAILEY, GENERAL MANAGER
ISSUE
Board authorization is requested for the General Manager to (1) execute a professional services contract
with Burke, Williams & Sorensen, LLP (BWS)., for District Counsel services for up to a three-year term,
commencing October 1, 2023.
BACKGROUND
Kenton L. Alm, Esq. has been providing legal services to Central San since 1986, as an individual attorney
since January 2019, and prior to that through the firm of Meyers Nave since 2002. Since January 2019,
Central San has also contracted with Meyers Nave for additional legal services to supplement Mr. Alm. In
anticipation of Mr. Alm's retirement, and the expiration of the Meyer's Nave contract in June 2023, Central
San (through the recruiting firm Avery & Associates) conducted a Request for Proposal (RFP) process to
solicit the interest of firms prepared to provide legal services in the succession of this team. The RFP was
released on December 1, 2022, with responses due January 13, 2023. The RFP requested the firms'
qualifications and experience in the areas of (1) Public Law, (2) Public Works Construction, (3) Clean
Water Act (CWA) and Related Regulatory Issues, (4) Real Property and Easements, (5) Rates, Fees,
and Charges. Additionally, the RFP indicated firms would be evaluated on:
1. Firms' and/or proposed attorney's track record in supporting public sector clients.
2. Qualifications and experience of the individuals assigned to this project.
3. Responsiveness and demonstrated understanding of providing long-term, high -quality service.
4. Creativity in presenting overall projected costs and perceived value for services to be performed.
5. Defined strategies to provide significant attention and availability to Central San while mitigating
ongoing long-term legal costs.
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6. Law firm's or principal attorney's presentation/communication style and perceived ability to work with
Central San's Board of Directors (Board) and senior management team.
7. Law firm's and/or principal attorney's experience and knowledge of both public wastewater or water
utilities and of central Contra Costa County.
8. References.
After receiving written responses from seven firms, Central San held initial interviews with five legal firms in
late May 2023. Three finalists were selected to proceed to a final interview held with the Board on June 19,
2023. As a result of the RFP responses and those interviews, the firm of Burke, Williams & Sorensen,
LLP (BWS) was tentatively selected for further negotiations on a legal services agreement. During July
and August, staff and representatives from BWS discussed expectations for service and memorialized
these in a legal services agreement including a scope of work document (Attachment 1). Staff met with
BWS representatives on August 29, 2023 to confirm expectations and finalize the agreement with the goal
of bringing the agreement to the Administration Committee on September 5, 2023, and to the Board of
Directors on September 21, 2023 for approval. Mr. Alm has agreed to extend his service to the District
until mid -October to provide for some transitional overlap and onboarding of BWS.
The proposed legal services agreement addresses matters including cost, term, team and scope of
service:
Cost: $28,000 per month as a retainer; with potential adjustments after the first two six-month
intervals, and in January of odd numbered years thereafter. This would equate to reviews in March
2024, September 2024, January 2025. The services to be provided under the flat rate retainer are
specified in Exhibit A to the agreement (discussed below). Other legal services ("Special Services")
would be billed at hourly rates specified as: $395 for partners, $325 for associates, and $135 for Law
Clerks and paralegals.
2. Term: Commencing October 1, 2023, for three years with extensions thereafter as approved by
Central San. Continued service is subject to satisfactory performance in the annual reviews provided
by the Board.
3. Team: Leah J. Castella will serve as the General Counsel and Deirdre Joan Cox will serve as the
Assistant General Counsel and they will be the coordinators of services provided to the District.
Other attorneys of the firm will be assigned as necessary, with specialists in the following areas
having been identified thus far: (1) Capital Project/Construction Contract Review; (2) Real Estate/Other
Contract Review; (3) Governance and policy issues; (4) Rates and finance issues.
4. Scope of Service: Exhibit A to the Legal Services Agreement contains the agreed to scope of services
that will be provided under the retainer agreement. This scope has been discussed extensively between
Central San staff and BWS, and is based on the scope of services provided by Mr. Alm and Meyers
Nave. Areas that were discussed significantly include office hours; volume of contracts to be legally
reviewed prior to the General Manager's signature; and involvement in the California Association of
Sanitation Agencies (CASA) legislative committee.
Services outside the specified scope of the retainer may include legal advice provided on non -routine matters
(deemed "Special Services"), such as work on specialized construction issues (such as complex bid disputes or
protests), preparation, prosecution and defense of litigation and/or adjudicative or investigative proceedings and
complex transactional matters. Potential work on these matters would be identified by BWS and authorized by
the General Manager or his designee before BWS proceeds. The costs for Special Services is not included in
the retainer amount, or the projected cost of the contract put forward for Board approval.
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ALTERNATIVES/CONSIDERATIONS
District Counsel services are essential for Central San. In terms of alternatives, the Board could select
another firm. This is not recommended as BWS was selected in a competitive process and has been
responsive to Central San's stated needs. The Board could propose different terms in the legal services
agreement such as those relating to cost parameters; the term of agreement; the scope of work to be
included in the retainer versus "special services" or other matters.
FINANCIAL IMPACTS
The current retainer agreement with Mr. Alm is at a cost of $19,608 per month. A separate agreement with
Meyers Nave has resulted in lessor monthly billings that averaged only $776 per monthly during 2022. So,
at these rates, the annual cost for both providers would be approximately $245,000.
Under the proposed agreement with BWS, the monthly retainer is $28,000 per month, subject to potential
cost adjustments at check -in periods noted above. This would equate to $336,000 annually. The term of
the proposed contract is for three years. Additionally, Central San will have the option to extend the contract
beyond that three-year term for additional periods as agreed to by Central San. The cost of a three-year
agreement with no interim rate or other adjustments would have a cost of $1,026,000. With adjustments of 10%
annually after year 1 and 2, the total cost for a three-year arrangement would be $1,132,200. It should be noted
that the proposed authorization amount of $1,200,000 provides for some contingency above the expected
amount. The proposed authorization amount does not include funding for Special Services; the costs of which
are difficult to estimate in advance. Accordingly, the proposed Board action provides authorization for Special
Services through BWS within the constraints of the authorized budgets.
COMMITTEE RECOMMENDATION
The Administration Committee reviewed this matter at its September 5, 2023 meeting and
recommended
RECOMMENDED BOARD ACTION
Authorize the General Manager to (1) execute a Professional Services contract with Burke, Williams &
Sorenson LLP for General Counsel services for the District effective September 21, 2023, for a term of
three years subject to satisfactory annual performance reviews and interim retainer cost changes as
established in the agreement and agreed to by Central San; (2) authorize funding for the agreement in an
amount up to $1,200,000 for retainer related services over a three year term; (3) authorize funding for legal
services outside of the retainer defined services ("Special Services") subject to the overall funding
constraints of the authorized budgets (Operating & Maintenance, Sewer Construction {Capital), and Self -
Insurance) to be accompanied by an annual report on overall legal costs.
Strategic Plan Tie -In
GOAL TWO: Environmental Stewardship
Strategy 1 - Achieve compliance in all regulations
GOAL FOUR: Governance and Fiscal Responsibility
Strategy 1 - Promote and uphold ethical behavior, openness, and accessibility
ATTACHMENTS:
1. Legal Services Agreement BWS-CentralSan
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AGREEMENT FOR GENERAL COUNSEL SERVICES
This Agreement for General Counsel Services ("Agreement") is made and entered into as
of the * day of August, by and between the Central Contra Costa Sanitary District, an
independent special district of the State of California ("District") and Burke, Williams &
Sorensen, LLP, a California limited liability partnership ("Burke") (collectively, the "Parties").
RECITALS
A. District requires the professional legal services of attorneys to serve as the
District's General Counsel.
B. Burke has the necessary experience and history in providing professional legal
services and advice and is able and willing to provide General Counsel services to the District.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, the Parties agree as follows:
Legal Services.
1.1 Burke's duties shall be that of General Counsel to the District, and
Burke shall perform any and all basic General Counsel duties and functions entrusted to it by
the District including, without limitation, those services described in Exhibit A ("Services"). In
performing the Services, Burke's attorneys shall be available for advice or consultation as
needed by phone or email, with follow-up written advice as requested by District. Burke shall
not prepare any writing on District stationary without the consent of the District and shall
exercise good faith efforts to obtain consent of the General Manager prior to engaging with the
media regarding any events, persons or policies of the District, or shall immediately notify the
General Manager after any such engagement. Further, Burke shall keep informed of the
operation, management, personnel and projects of the District, as well as the industry of waste
water districts.
1.2 Leah J. Castella shall be designated the General Counsel and
Deirdre Joan Cox shall be designated the Assistant General Counsel and they will be the
coordinator of services provided to the District with other attorneys of the firm as necessary.
Other Burke attorneys will be assigned to assist Leah and Joan as appropriate. Burke will
endeavor to use the same team of attorneys to assist the District where ever possible.
1.3 District and its members recognize that the firm of Burke provides
legal representation to public entities throughout California. The Services will not include
matters in which Burke has a conflict of interest that precludes Burke from representing the
District, members of the District Board, or officers or employees of District. If Burke has a
conflict of interest or lacks expertise to handle a particular assignment, Burke shall provide the
District with a recommendation to hire outside counsel. District also agrees to exercise
reasonable discretion in providing waivers for any potential or perceived conflicts that might
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arise out of representation of Burke's other clients, which representation does not directly
involve Burke's representation of District.
2. Standard of Performance. While performing the Services, Burke will
exercise the reasonable professional care and skill customarily exercised by reputable members
of the California State Bar practicing in the Metropolitan Northern California Area, and will use
reasonable diligence and best judgment while exercising its professional skill and expertise.
3. Term. Unless earlier terminated or extended, the term of this Agreement
will be for a period of three years, effective October 1, 2023, with extensions thereafter as
approved by the Central San. The General Counsel, along with the General Manager and
Secretary of the District serve at the pleasure of the Central San Board, and in accordance with,
are provided with annual written performance reviews. Burke's continued services during the
term of the agreement, or through any extensions thereof, are subject to satisfactory
performance reviews.
4. Monthly Retainer. In consideration for the rendition of the Services,
District shall compensate Burke as follows:
4.1 For General Counsel services which shall include those services
identified in Exhibit A and routine costs (photocopying, facsimiles, telephone calls), District shall
pay to Burke a monthly fee of $28,000 ("Retainer"). Six months after the effective date of this
Agreement, and six months thereafter, the Parties will re-evaluate the Retainer to determine if
it needs to be adjusted. Subsequent adjustments will be reviewed in January of odd numbered
years.
4.2 Burke is not required to separately report hours expended under
the Retainer on a monthly basis, but will provide a quarterly report to the General Manager.
The quarterly report will provide information about the overall level of services and areas
worked in order to facilitate allocation of retainer costs within the District, and to provide a
record of work levels to facilitate any subsequent retainer cost adjustments.
4.3 Travel within the Bay Area for retainer related services shall be included within the
monthly retainer cost.
5. Other Legal Services
5.1 For other additional services rendered in connection with legal
advice provided on non -routine matters, including but not limited to, specialized construction
issues (such as complex bid disputes or protests), preparation, prosecution and defense of
litigation and/or adjudicative or investigative proceedings and complex transactional matters
("Special Services"), Burke shall identify such matters and discuss such with the General
Manager or his designee. . If agreed to as Special Services, the District shall pay to Burke on an
hourly basis $395 for partners, $325 for associates, and $135 for Law Clerks and paralegals.
Prior to applying this rate to any matter covered by this paragraph, Burke shall obtain written
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authorization from the General Manager. Special Service rates will be reviewed in January of
odd numbered years for adjustment.
6. Payment for Services
6.1 Burke shall bill the District on a monthly basis for the Retainer and
for any Special Services provided in that month. For all Special Services, each bill shall indicate
the date of the work done, the work that was accomplished, the attorney or paralegal that
performed the work, and the fee for the work.
6.2 All travel time on Special Services will be at one half the normal
billing rate
6.3 The following out-of-pocket expenses will be separately itemized
and included in bills to the District: (1) extraordinary operating expenses, including items such
as messenger services, overnight mail charges, and extraordinary copying; (2) necessary travel
and subsistence expenses; (3) court costs, including filing fees, witness fees, and deposition and
discovery costs not paid directly by the District.
6.4 The District shall review and approve Burke's monthly statements
and pay Burke for services rendered and expenses incurred at the rates and in the amounts
provided in this Agreement on a monthly basis in accordance with the approved monthly
statements.
7. General Compliance with Laws. Burke will keep informed of federal,
state and local laws and ordinances and regulations which in any manner affect Burke, or in any
way affect the performance of the Services by Burke. Burke will at all times observe and
comply with these laws, ordinances, and regulations and will be responsible for the compliance
of the Services with all applicable laws, ordinances and regulations.
8. Status of Burke. Burke will perform the Services in Burke's own way as an
independent contractor and in pursuit of Burke's independent calling, and not as an employee
of District. The persons used by Burke to provide the Services under this Agreement will not be
considered employees of District for any purposes. The payment made to Burke pursuant to
the Agreement will be the full and complete compensation to which Burke is entitled. District
will not make any federal or state tax withholdings on behalf of Burke or its agents, employees
or subcontractors. District will not be required to pay any Workers' Compensation insurance or
unemployment contributions on behalf of Burke or its employees or subcontractors.
9. Indemnification. Burke will indemnify and hold harmless District and its
officers, agents, employees and volunteers from and against all claims, damages, losses and
expenses including attorney fees arising out of the performance of the Services to the extent
they are caused by the willful misconduct or negligent act or omission of Burke, any
subcontractor, anyone employed by any of them or anyone for whose acts any of them may be
liable.
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10. Insurance. Burke will obtain and maintain for the duration of the
Agreement and any and all amendments, insurance against claims for injuries to persons or
damage to property which may arise out of or in connection with performance of the Services
by Burke or Burke's agents, representatives, employees or subcontractors. The insurance will
be obtained from an insurance carrier admitted and authorized to do business in the State of
California. The insurance carrier is required to have a current Best's Key Rating of not less than
"ANIL"
10.1 Coverages and Limits. Burke will maintain the types of coverages
and minimum limits indicated below, unless General Manager approves a lower amount. These
minimum amounts of coverage will not constitute any limitations or cap on Burke's
indemnification obligations under this Agreement. District, its officers, agents, volunteers and
employees make no representation that the limits of the insurance specified to be carried by
Burke pursuant to this Agreement are adequate to protect Burke. If Burke believes that any
required insurance coverage is inadequate, Burke will obtain such additional insurance
coverage, as Burke deems adequate, at Burke's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000
combined single -limit per occurrence for bodily injury, personal injury and property damage. If
the submitted policies contain aggregate limits, general aggregate limits will apply separately to
the work under this Agreement or the general aggregate will be twice the required per
occurrence limit.
10.1.2 Automobile Liability. $2,000,000 combined single -limit per
accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability.
Workers' Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury.
10.1.4 Professional Liability. Errors and omissions liability
appropriate to Burke's profession with limits of not less than $2,000,000 per claim.
10.2 Additional Provisions. Burke will ensure that the policies of
insurance required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 For Commercial General Liability Insurance and
Automobile Liability Insurance, District and its officers, agents, volunteers and employees will
be named as additional insureds.
10.2.2 Burke will obtain occurrence coverage, excluding
Professional Liability, which will be written as claims -made coverage.
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10.2.3 This insurance will be in force during the life of the
Agreement and any extensions of it and will not be canceled without thirty (30) days prior
written notice to District sent pursuant to the notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to
District's execution of this Agreement, Burke will furnish certificates of insurance and
endorsements to District. The District utilizes the services of Ebix, Inc. to confirm insurance
compliance and to collect electronic copies of Certificates of Insurance. Burke shall submit all
required information to Ebix, Inc with original certificates and amendatory endorsements or
copies of the applicable policy language effecting coverage required herein. All certificates and
endorsements shall be verified by EBIX and accepted by the Burke before work commences.
The District may also require copies of Policy Declarations Pages and Schedules of Policy
Endorsements. Burke shall provide insurance documentation to centralsan@ebix.com for
processing.
10.4 Failure to Maintain Coverage. If Burke fails to maintain any of
these insurance coverages, then District will have the option to declare Burke in breach, or may
purchase replacement insurance or pay the premiums that are due on existing policies in order
to maintain the required coverages. Burke is responsible for any payments made by District to
obtain or maintain insurance and District may collect these payments from Burke or deduct the
amount paid from any sums due Burke under this Agreement.
10.5 Primary Coverage. For any claims related to the Services and this
Agreement, Burke's insurance coverage will be the primary insurance with respect to District
and its officers, agents, volunteers and employees. Any insurance or self-insurance maintained
by District, for itself or its officers, agents, volunteers and employees, will be in excess of
Burke's insurance and not contributory with it.
10.6 Reduction in Coverage/Material Changes. Burke will notify
District thirty (30) days prior to any reduction in any of the insurance coverage required
pursuant to this Agreement or any material changes to the respective insurance policies.
11. Maintenance of Records. Burke will maintain complete and accurate
records with respect to costs incurred under this Agreement. All such records will be clearly
identifiable. Burke will allow a representative of District during normal business hours to
examine, audit, and make transcripts or copies of such records and any other such documents
created pursuant to this Agreement. Burke will allow inspection of all work, data, documents,
proceedings, and activities related to the Agreement for a period of three (3) years from the
date of final payment under this Agreement.
12. Ownership of Documents. Upon termination of this Agreement, all
reports, plans, documents, records, and data or certified copies of same prepared by Burke
pursuant to this Agreement shall become the property of District, excluding Burke's internal
accounting records and other documents not reasonably necessary to District's representation,
subject to Burke's right to make copies of any files withdrawn by District. Once a matter is
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concluded, Burke will close the file and District will receive notice of any District materials that
remain in Burke's possession. District will be invited to retrieve these District materials within a
reasonable time as set forth in the notice or District may direct Burke to forward the District
materials to District at District's expense. If District does not retrieve the materials or request
that they be forwarded, District authorizes Burke to destroy the materials in accordance with
applicable rules of professional conduct and document retention. Under Burke's document
retention policy, Burke would normally destroy files five (5) years after a matter is closed,
unless other arrangements are made with District. All District -supplied materials and all
attorney end product (referred to generally as "District material") are the property of District.
Attorney end product includes, for example, finalized contracts, pleadings, and trust
documents. Attorney work product is the property of Burke. Attorney work product includes,
for example, drafts, notes, internal memoranda and electronic files, and attorney
representation and administration materials, and conflicts materials.
13. Notices. The name of the persons who are authorized to give written
notices or to receive written notice on behalf of District and on behalf of Burke under this
Agreement are:
For District:
Central San
Attn: Roger Bailey
5019 Imhoff Place
Martinez, CA 94553
For Burke:
Burke, Williams & Sorensen, LLP
Attn: Leah J. Castella
1999 Harrison St., 16th Floor
Oakland, CA 94612
(510) 273-8780
Except as otherwise stated, all notices to be provided or that may be provided
under this Agreement must be in writing and delivered by regular or certified mail. Each party
will notify the other immediately of any changes of address that would require any notice or
delivery to be directed to another address.
14. Termination of Services.
14.1 District may terminate Services at any time by written notice.
After receiving such notice, Burke will cease providing the Services. Burke will cooperate with
District in the orderly transfer of all related files and records to District's new counsel.
14.2 Burke may terminate the Services at any time upon sixty (60) days
prior written notice. If Burke terminates the Services, District agrees to execute a substitution
of attorneys promptly and otherwise cooperate in effecting that termination.
14.3 Termination of the Services, whether by District or by Burke, will
not relieve the obligation to pay for the Services rendered and costs incurred before the
Services formally ceased.
A
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15. Entire Agreement. This Agreement embodies the entire Agreement and
understanding between the Parties relating to the subject matter of it. In case of conflict, the
terms of this Agreement supersede any and all prior written or oral agreement, order or
understanding. Neither this Agreement nor any of its provisions may be amended, modified,
waived or discharged except in writing signed by both Parties.
[signatures follow on next page]
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IN WITNESS HEREOF, the Parties hereby execute this Agreement as of the date set forth
above.
BURKE:
DISTRICT:
BURKE, WILLIAMS & SORENSEN, LLP CENTRAL CONTRA COSTA SANITARY
DISTRICT, an Independent Special District of
the State of California
A
John J. Welsh, Managing Partner By:
Directors
President, Board of
APPROVED AS TO FORM:
as
, Attorney
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EXHIBIT A
GENERAL COUNSEL SERVICES
• Attendance at Board meetings in person at District;
• Attendance at Board Committee meetings as requested either in person or virtually;
• Preparation and presentation of advice to the Board and Board members;
• Provision of a minimum of two half -days of onsite office hours per week through December
31, 2023, or the equivalent, with the days and hours to be adjusted as needed to
accommodate staff, Directors, and Counsel for the District. As of January 1, 2024, onsite
office hours will be reduced to one half -day per week, with the days and hours to be
adjusted as needed to accommodate staff, Directors and Counsel for the District
• Participation in internal meetings useful to obtain understanding of current happenings at
the agency as directed by staff (including: Manager's forum, Agenda Review, Final Agenda
Review);
• All telephone calls, excepting calls on assigned litigation or special legal assignments for
which there is authorization to bill separately
• Receipt and review of all correspondence, documents, faxes, and emails receive or reviewed
remotely, except on separately billed matters;
• Management of outside counsel litigation services including providing coordination among
Counsel for the District, staff, Board of Directors, and outside litigation counsel;
• Review of routine contracts for compliance with District policies and procedures and
applicable law;
• Review and/or preparation of ordinances, resolutions, orders, agreements, forms, notices,
declarations, certificates, deeds, leases, policies, and other documents required by the
District;
• Consultation with the General Manager and District staff as needed to render legal advice
and/or to provide a legal opinion on legal matters impacting the District or District
operations;
• Legal work pertaining to routine issues related to public contracting, property acquisition,
property disposal, public improvements, public rights -of -way and easements, and matters
relating to public utilities;
• Routine review of sewer service rate studies and impact fee rate studies;
• Participate in CASA legislative committee meetings in partnership with District staff
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