HomeMy WebLinkAbout2019-11-05; Clean Energy Alliance JPA; ; Appoint Special Regulatory CounselCLEAN ENERGY ALLIANCE
STAFF REPORT
TO: Clean Energy Alliance Board of Directors
ITEMG: APPOINT SPECIAL REGULATORY COUNSEL
DATE: November 5, 2019
RECOMMENDATION:
That the Board appoint the law firm of Tosdal APC as Special Regulatory Counsel, and authorize
the Board Chair to execute a Legal Services Agreement (Attachment 1) in an amount not to
exceed $50,000 for Fiscal Year 2019/2020.
BACKGROUND AND DISCUSSION:
Implementation and operations of a community choice aggregation program, such as the Clean
Energy Alliance (CEA), requires the services of a special regulatory counsel to ensure the
program is compliant with all regulatory filings, as well as to monitor and participate in energy
related matters before the California Public Utilities Commission (CPUC), California Energy
Commission (CEC) and California Independent System Operator (CAISO) as well as related issues
facing community choice aggregators.
Pursuant to the Scope of Services included as Exhibit A to Attachment 1, CEA is engaging Tosdal
APC to provide legal services only in connection with specific matters that it authorizes in
advance, and the engagement is limited to performance of services related to those matters.
Tosdal APC has been providing Special Regulatory Counsel services for Solana Energy Alliance
since 2017, and the firm's experience in monitoring and reporting on regulatory proceedings,
supporting CCA program regulatory compliance, and advocating on CCA-specific matters before
the CPUC, CEC, CAISO and other regulatory agencies support the staff recommendation.
FISCAL IMPACT:
Staff is recommending that the Board execute a contract with Tosdal APC in an amount not to
exceed $50,000 for Fiscal Year 2019/2020 to perform special regulatory counsel services. A Fee
Schedule is included as Exhibit B to Attachment 1.
Attachment
1. Legal Services Agreement between the Clean Energy Alliance and Tosdal APC
'•
LEGAL SERVICES AGREEMENT BETWEEN
THE CLEAN ENERGY ALLIANCE AND
TOSDALAPC
A PROFESSIONAL CORPORATION
THIS AGREEMENT, dated November--5._ 2019, is by and between the CLEAN
ENERGY ALLIANCE ("Authority"), and TOSDAL APC, a professional corporation, engaged in
the practice oflaw in California, hereinafter referred to as "Special Counsel."
WHEREAS, the Authority is an independent joint powers authority duly organized under
the provisions of the Joint Exercise of Powers Act of the State of California (Government Code
Section 6500 et seq.) with the power to conduct its business and enter into agreements; and
WHEREAS, the Authority has been formed to conduct a community choice aggregation
program within the member agencies jurisdictions in San Diego County as authorized by Public
Utilities Code Section 366.2; and
WHEREAS, the Authority desires to retain a law firm capable of providing special counsel
legal services to it; and
WHEREAS, in reliance upon the representations made by Tosdal APC regarding its
qualifications, the Authority finds that this law firm has demonstrated the requisite qualifications,
experience, training and expertise to perform the requested services.
NOW, THEREFORE, INCONSIDERATION OF THE MUTUAL COVENANTS AND
CONDITIONS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
1.0. SCOPE OF SERVICES. Special Counsel will perform the legal services to the Authority
described in Exhibit "A" to this Agreement.
1.1 Special Counsel Representative. Ty Tosdal, Chief Executive Officer of Special
Counsel, shall be responsible for the performance of services hereunder and shall supervise any
services performed by other members or employees of Special Counsel. Throughout the course of
this Agreement and while performing services hereunder, Special Counsel shall perform such
services as an independent contractor. Special Counsel is not an officer, agent or employee of the
Authority.
1.2 Authority's Authorized Representative. For the performance of services under
this Agreement, Special Counsel shall take direction from the Board of Directors and Executive
Director of Authority.
2.0. TIME OF PERFORMANCE. The term of this Agreement shall be for the period of time
from November 5, 2019 to and including June 30, 2020 unless terminated earlier pursuant to
Section 5.0 or extended by the mutual written agreement of the parties.
Agreements\Special Counsel
3.0 COMPENSATION, REIMBURSEMENT AND METHOD OF PAYMENTS.
3.1 Compensation. Fees for all legal services provided hereunder shall be charged in
accordance with Exhibit "B" which is attached and incorporated by reference. The total amount of
fees and expenses under this Agreement shall not exceed $50,000. This compensation amount shall
not be increased without the prior written approval of the Authority Board of Directors. Special
Counsel shall notify the Authority prior to incurring billable fees and costs in excess of 95% of the
not-to-exceed amount.
3.2 Reimbursement. In addition to billing for services based on the hourly rates set
forth above, Special Counsel is authorized to bill the Authority for reimbursement of its actual
costs directly related to the services; provided that the total billing (for hourly services and
reimbursable costs) shall not exceed the amount identified in Section 3.1, and provided that Special
Counsel either: (a) obtains the approval of the Authority's Chief Executive Officer prior to
incurring the costs, or (b) the costs fall into one of the following categories:
(1) Travel expenses to and from Board meetings or other meetings requested by the
Authority.
(2) Court costs, such as filing fees.
(3) Service of process.
(4) Court reporter fees.
(5) Expert witnesses, consultants, or investigators.
(6) Copying costs, at $0.10 per page.
(7) Actual costs of mailing.
Any other expense must be approved in advance by Authority's Chief Executive Officer in writing.
No compensation shall be allowed for word processing, normal or overflow secretarial time or
overtime, or general or administrative overhead or premiums added to the direct cost of research
support or other services.
3.3 Expense Control. Special Counsel shall use all available means, consistent with
sound professional practices and the exercise of reasonable judgment, to limit and minimize
expenses incurred during the performance of this Agreement.
3.4 Method of Billing. Special Counsel shall provide monthly bills in the form
specified herein. Special Counsel shall endeavor to provide monthly invoices no later than 30 days
after the end of each billing cycle (i.e., all services identified on the invoice were performed no
more than 60 days prior to the date the Authority received the invoice). The Authority shall have
no obligation to pay Special Counsel for services to the extent performed more than 90 days prior
to the date the Authority receives the invoice for the services. Each bill shall have a cover page
summary indicating category totals. Unless otherwise agreed, the following information must be
provided in monthly bills in detail:
A. A detailed description of work, in time increments of .1 hours (one tenth of an hour)
for and by each and every individual billing services.
Agreements\Special Counsel 2
B. Identification of the lawyer who is in charge of the matter.
C. Reasonably detailed disbursement breakdowns.
D. Each billing item will be separately stated on a separate line identifying the attorney,
the time spent and the exact nature of the service rendered.
3.5 Timing of Payment. The Authority shall pay Special Counsel for services
rendered and costs incurred hereunder, at the rates and in the amounts provided hereunder, on a
timely and periodic basis in accordance with the periodic statements, as approved by the
Authority's Chief Executive Officer.
4.0 ENGAGEMENT OF OTHER COUNSEL, SPECIALISTS OR EXPERTS. Special
Counsel will not engage or otherwise incur an obligation to pay other counsel, specialists or experts
for services in connection with this Agreement without the prior approval of the Authority's Chief
Executive Officer.
5.0 TERMINATION OF AGREEMENT AND LEGAL SERVICES. The Authority shall
have the right, at any time in its best judgment, with or without reason, to terminate this Agreement,
and to obtain new Special Counsel, or take such other steps, as Authority deems proper. In the
event that this Agreement is so terminated, Authority shall pay to Special Counsel the rates, fees
and charges accrued for satisfactory work to the time of termination. Authority shall be entitled to
electronic and written copies of files maintained concerning this representation and to the return
of all documents submitted to Special Counsel. Special Counsel shall have the right, with or
without reason, to terminate this Agreement upon thirty (30) days written notice to the Authority
General Counsel.
6.0 INTEREST OF MEMBERS OF LOCAL PUBLIC AGENCY. No member of the
governing body of the Authority, and no other officer, employee or agent of the Authority who
exercises any discretion, function or responsibility in connection with the carrying out of any
project, to which this Agreement pertains, shall have any personal interest, direct or indirect, in
this Agreement.
7.0 INTEREST OF COUNSEL. Special Counsel agrees to secure the informed written
consent of the Authority's Board of Directors before accepting any representation adverse to the
Authority (actual or apparent) during the term of this Agreement, and to forego such representation
if the Authority's Board of Directors, in their sole discretion, objects for any reason.
9.0 CONFLICT OF INTEREST PROHIBITED. Special Counsel (including its employees,
members, officers and agents) shall not maintain or acquire any direct or indirect interest that
conflicts with the performance of this Agreement. Special Counsel shall comply with all
requirements of the Political Reform Act (California Government Code sections 81000, et seq.)
and other laws relating to conflicts of interest, including: (a) Special Counsel shall not make or
participate in a decision made by the Authority if it is reasonably foreseeable that the decision may
have a material effect on Special Counsel's economic interest, and (b) ifrequired by law, Special
Counsel shall file financial disclosure forms with the Authority Clerk. If Special Counsel maintains
Agreements\Special Counsel 3
or acquires a conflicting interest, any contract with the Authority (including this Agreement)
involving Special Counsel's conflicting interest may be terminated by the Authority.
10.0 MAINTENANCE AND INSPECTION OF RECORDS.
10.1 Audits. The Authority and any relevant federal, state or local governmental agency,
and any of their authorized auditors or representatives, including the Authority Auditor, shall have
access to, and the right to audit and reproduce any of Special Counsel's records to the extent the
Authority or such other governmental agency deems necessary to ensure that Authority is paying
only the amounts to which Special Counsel is properly entitled or for other purposes relating to
the Agreement.
10.2 Records. Special Counsel shall maintain and preserve all such records for at least
three (3) years after termination of the Agreement or until an audit has been completed and
accepted in writing by Authority. Upon written notice by the Authority, the Special Counsel shall
promptly make all such records available to auditors or other representatives of the Authority or
other governmental agencies.
11.0 INSURANCE. Special Counsel shall, at its own expense, procure and maintain policies of
insurance of the types and in the amounts set forth below, for the duration of the Agreement,
including any extensions thereto. The Authority and each of its members, their officials,
employees, agents and volunteers are to be covered as additional insureds under the policies except
for the Professional Liability policy. The policies shall state that they afford primary coverage.
Failure to maintain required insurance at all times shall constitute a default and material breach. In
such e,vent, Special Counsel shall immediately notify Authority and cease all performance under
this Agreement until further directed by the Authority.
11.1 General Liability. General Liability with minimum limits of at least $1,000,000
combined single limits written on an Insurance Services Office (ISO) Comprehensive General
Liability "occurrence" form or its equivalent for coverage on an occurrence basis.
Premises/Operations and Personal Injury coverage is required.
11.2 Professional Liability. Professional errors and omissions coverage in a sum of at
least $1,000,000. If a claims-made policy is required, a "tail" of at least three years shall be
purchased if non-renewed within three (3) years of completion of performance under this
Agreement.
11.3 · Workers' Compensation. Special Counsel shall comply with the applicable
sections of the California Labor Code concerning workers' compensation for injuries on the job.
12.0 INDEMNIFICATION. Special Counsel shall indemnify, hold harmless, and defend the
Authority and its members (including its elected officials, officers, agents and employees) from
and against any and all claims (including all litigation, demands, damages, liabilities, costs, and
expenses, and including court costs and attorney's fees), arising from or related to Special
Counsel's performance of this Agreement to the extent caused by Special Counsel's negligent acts,
omissions or willful misconduct under this Agreement.
Agreements\Special Counsel 4
13.0 DEFAULT. If either party ("demanding party") has a good faith belief that the other party
("defaulting party") is not complying with the terms of this Agreement, the demanding party shall
give written notice of the default (with reasonable specificity) to the defaulting party, and demand
the default to be cured within ten days of the notice. If: (a) the defaulting party fails to cure the
default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure
the default and the defaulting party fails to give adequate written assurance of due performance
within ten days of the notice, then ( c) the demanding party may terminate this Agreement upon
written notice to the defaulting party.
14.0 NOTICES. All notices required or contemplated by this Agreement shall be in writing and
shall be delivered or mailed to the respective party as set forth in this section. Communications
shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party's Authorized
Representative, or (b) actual receipt at the address designated below, or (c) three working days
following deposit in the United States Mail of registered or certified mail sent to the address
designated below. The Authorized Representative of either party may modify their respective
contact information identified in this section by providing notice to the other party.
To: Clean Energy Alliance
Attn: Chief Executive Officer
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Sheila.Cobian@carlsbadca.gov
To: Tosdal APC
Attn: Ty Tosdal
777 South Highway 101, Suite 215
Solana Beach, CA 92075
ty@tosdallaw.com
15.0 NO RECOURSE AGAINST CONSTITUENT MEMBERS OF AUTHORITY.
Authority is organized as a Joint Powers Authority in accordance with the Joint Powers Act of the
State of California (Government Code Section 6500 et seq.) pursuant to a Joint Powers Agreement
dated ll"'Y / 2019, and is a public entity separate from its constituent members. Authority
shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this
Agreement. Special Counsel shall have no rights and shall not make any claims, take any actions
or assert any remedies against any of Authority's constituent members in connection with this
Agreement.
16.0 HEADINGS. The heading titles for each paragraph of this Agreement are included only
as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the
interpretation of the Agreement.
17.0 SEVERABILITY. If any term of this Agreement (including any phrase, prov1s1on,
covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable,
the Agreement shall be construed as not containing that term, and the remainder of this Agreement
shall remain in full force and effect; provided, however, this paragraph shall not be applied to the
extent that it would result in a frustration of the parties' intent under this Agreement.
18.0 GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and
enforcement of this Agreement shall be governed by and interpreted in accordance with the laws
Agreements\Special Counsel 5
of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement
shall be filed and heard in a court of competent jurisdiction in the County of San Diego.
19.0 ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall
not be assigned or transferred, nor shall any of the Special Counsel's duties be delegated, without
the written consent of the Authority. Any attempt to assign or delegate this Agreement without the
written consent of the Authority shall be void and of no force or effect. A consent by the Authority
to one assignment shall not be deemed to be a consent to any subsequent assignment.
20.0 MODIFICATIONS. This Agreement may not be modified orally or in any manner other
than by an agreement in writing signed by both parties.
21.0 WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other provision of this
Agreement.
22.0 ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein
by reference, comprises the entire integrated understanding between the parties concerning the
services described herein. This Agreement supersedes all prior negotiations, agreements, and
understandings regarding this matter, whether written or oral. The documents incorporated by
reference into this Agreement are complementary; what is called for in one is binding as if called
for in all.
23.0 EACH PARTY's ROLE IN DRAFTING THE AGREEMENT. Each party to this
Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding
the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither
party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning
of the Agreement.
24.0 SIGNATURES. The individuals executing this Agreement represent and warrant that they
have the right, power, and legal authority to enter into and to execute this Agreement on behalf of
the respective legal entities of the Special Counsel and the Authority. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Authority and Special Counsel have executed this Agreement.
CLEAN ENERGY ALLIANCE
A Joint Powers Authority
Chair, Board of Directors
Dated: tlov~bu: I Y, aD/ti
Agreements\Special Counsel 6
TOSDALAPC
A Professional Corporation
ByTylt~ecu
Dated: ,..,.~ I? I z,,,,
EXHIBIT A
SCOPE OF SERVICES
The scope of Consultant's engagement will be to provide advice and representation in connection
with energy regulatory matters and related issues facing Community Choice Aggregators, also
known as Community Choice Energy (CCE) programs primarily before the California Public
Utilities Commission, but also before the California Energy Commission and California
Independent System Operator (CAISO), as more specifically set forth below. The Joint Powers
Authority (JPA) is engaging the Consultant to provide legal services only in connection with
specific matters that it authorizes in advance, and the engagement is limited to performance of
services related to those matters.
Monitoring and Reporting
When approved in advance, monitoring and reporting about developments in regulatory
proceedings before the California Public Utilities Commission or other regulatory agencies that
may be necessary to make informed decisions at the program level. This task involves review of
various documents, including notices, advice letters, comments and briefs, and Commission
decisions. If approved in advance, these materials may be summarized in a digestible written
format and relayed to the program. Monitoring and reporting of regulatory activities are the
primary responsibilities of legal assistants with oversight from attorneys.
Regulatory Compliance Support
CCE programs have authority to set rates and administer customer offerings, but the Public
Utilities Commission and other regulatory agencies retain jurisdiction over certain aspects of the
programs, mostly related to energy procurement. When approved in advance, regulatory
compliance support entails interpretation and analysis of these rules, review of best practices, and
collaboration with staff and consultants to apply the rules to the program. This is a support role
only, and primary compliance tasks, such as data collection and the preparation of compliance
reports, are not included as they are performed by internal procurement staff or other staff or
consultants. Regulatory compliance support is typically carried out equally by attorneys and legal
assistants, with support from paralegals as needed.
Direct Advocacy
When approved in advance, direct advocacy in regulatory proceedings may be ne~essary in
order to achieve certain goals. Active participation is work intensive, and requires document
review, consultation with clients, development of strategy, and the preparation of comments
and briefs. Depending on the proceeding, this task may also involve collaboration with
technical experts, development and review of testimony, and questioning and defending
witnesses at hearings. Because the Public Utilities Commission is located in San Francisco,
where meetings and hearings are held, travel may be required. CEA will not pay the
Consultant for travel time. If authorized in advance, the CEA will reimburse the Consultant
for the actual costs incurred for travel (including mileage, ground transport, parking, air or
rail fare, lodging, meals). Given the complexity and prevalence of legal issues, direct
advocacy is performed largely by attorneys with support from legal assistants and paralegals
as needed.
Agreements\Special Counsel A-1
Rates
EXHIBITB
FEE SCHEDULE
Ty Tosdal will be the attorney responsible for this engagement, and some of the work may be
performed by other attorneys at the firm, paralegals, legal assistants and support personnel, as
necessary. The discounted hourly rates for the Joint Powers Authority (JPA) are as follows:
Staffing Level
Shareholder or Lead Counsel
Senior Associates
Junior Associates
Legal Assistants
Paralegals
Travel time will not be billed.
Costs and Expenses
Rate
$305
$215
$150
$110
$85
Consultant's bills will include charges for the actual costs and expenses incurred in performing
services on the JPA's behalf, such as printing and copying, mail and delivery services, use oflegal
research and other databases, travel if approved in advance (including mileage, ground transport,
parking, air or rail fare, lodging, meals), telephone, filing fees and other legal support services.
Consultant will not engage expert witnesses, nor outside consultants, nor incurred any fees or
expenses related thereto, without making arrangements with the JP A in advance and obtaining
express written consent.
Agreements\Special Counsel B-1
ltem<6: l\ppoint Special
Regulatory•••·•Cou·nsel
DanKing
Clean Energy Alliance Board Meeting
November 5, 2019
Item 6: Appoint Special Regulatory Counsel
RECOMMENDED ACTION:
That the Board appoint Tosdal APC as Special Regulatory Counsel, and
authorize the Board Chair to execute a Legal .Services Agreement in an
amount not to exceed $50,000 for Fiscal Year 2019/2020.
11/14/2019
12
11/14/2019
Item 6: Appoint Special Regulatory Counsel
BACKGROUND AND DISCUSSION:
• Implementation and operations of a community choice aggregation
program requires the services of a special regulatory counsel
• Ensure the CCA is compliant with all regulatory filings
• Monitor and participate in energy related matters before the California Public
Utilities Commission, California Energy Commission (CEC) and California
Independent System Operator (CAISO) as well as related issues facing Community
Choice Aggregators
• Tosdal APC meets the qualifications required and has been providing
Special Regulatory Counsel services for Solana Energy Alliance since
2017
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