Loading...
HomeMy WebLinkAbout2019-11-05; Clean Energy Alliance JPA; ; Appoint General CounselCLEAN ENERGY ALLIANCE STAFF REPORT TO: Clean Energy Alliance Board of Directors ITEMS: APPOINT GENERAL COUNSEL DATE: November 5, 2019 RECOMMENDATION: That the Board appoint the law firm of Richards, Watson & Gershon (RWG) as General Counsel, and authorize the Board Chair to execute a Legal Services Agreement (Attachment 1) in an amount not to exceed $80,000 for Fiscal Year 2019/2020. BACKGROUND AND DISCUSSION: Section 5.6 of the Clean Energy Alliance (CEA) Joint Powers Agreement (JPA) establishes the requirement for the Board to appoint a General Counsel. The General Counsel is responsible for the legal aspects of the day-to-day operations of CEA. Since April 2019, the law firm of Richards, Watson & Gershon has been engaged by the Cities of Del Mar and Carlsbad to provide joint legal services to assist in negotiating and preparing CCA formation documents. RWG's experience providing legal services to joint powers authorities and Greg Stepanicich's familiarity with the CEA JPA, in particular, support the staff recommendation. As General Counsel to CEA, RWG shall provide the general legal services typically required by a joint powers authority in addition to those general legal services related more specifically to the operation of a community choice aggregation program as described in the Scope of Services included as Exhibit A to Attachment 1. RWG meets all the qualifications to perform the duties of General Counsel of CEA, and is not a member of the Board, elected official or employee of any of the member cities, in compliance with the CEA Joint Powers Agreement. FISCAL IMPACT: Staff is recommending that the Board execute a contract with Richards, Watson & Gershon in an amount not to exceed $80,000 for Fiscal Year 2019/2020 to perform the duties of General Counsel. A Fee Schedule is included as Exhibit B to Attachment 1. Attachment 1. Legal Services Agreement between the Clean Energy Alliance and Richards, Watson & Gershon LEGAL SERVICES AGREEMENT BETWEEN THE CLEAN ENERGY ALLIANCE AND RICHARDS, WATSON & GERSHON, A PROFESSIONAL CORPORATION THIS AGREEMENT, dated November 5, 2019, is by and between the CLEAN ENERGY ALLIANCE ("Authority"), and RICHARDS, WATSON & GERSHON, a professional corporation, engaged in the practice of law in California, hereinafter referred to as "General 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 general counsel legal services to it; and WHEREAS, in reliance upon the representations made by Richards, Watson & Gershon 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, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS: 1.0. SCOPE OF SERVICES. General Counsel will perform the legal services to the Authority described in Exhibit "A" to this Agreement. 1.1 General Counsel Representative. Gregory W. Stepanicich, Shareholder of General Counsel, shall be responsible for the performance of services hereunder and shall supervise any services performed by other members or employees of General Counsel. Throughout the course of this Agreement and while performing services hereunder, General Counsel shall perform such services as an independent contractor. General 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, General 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. 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 $80,000. This compensation amount shall not be increased without the prior written approval of the Authority Board of Directors. General 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, General 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 General 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: (I) 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. General 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. General Counsel shall provide monthly bills in the form specified herein. General 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 General 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\General 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 General 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. General 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 General Counsel, or take such other steps as Authority deems proper. In the event that this Agreement is so terminated, Authority shall pay to General 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 General Counsel. General Counsel shall have the right, with or without reason, to terminate this Agreement upon thirty (30) days written notice to the Authority Attorney. 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. General 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. General 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. General 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) General 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 General Counsel's economic interest, and (b) if required by law, General Counsel shall file financial disclosure forms with the Authority Clerk. If General Counsel Agreements\General Counsel 3 maintains or acquires a conflicting interest, any contract with the Authority (including this Agreement) involving General 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 General 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 General Counsel is properly entitled or for other purposes relating to the Agreement. 10.2 Records. General 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 General Counsel shall promptly make all such records available to auditors or other representatives of the Authority or other governmental agencies. 11.0 INSURANCE. General 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 event, General 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 $ I ,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. General Counsel shall comply with the applicable sections of the California Labor Code concerning workers' compensation for injuries on the job. 12.0 INDEMNIFICATION. General 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 General Counsel's performance of this Agreement to the extent caused by General Counsel's negligent acts, omissions or willful misconduct under this Agreement. Agreements\General 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 Drive Carlsbad, CA 92008 sheila.cobian@carlsbadca.gov To: Richards, Watson & Gershon Attn: Gregory W. Stepanicich 44 Montgomery Street, Suite 3800 San Francisco, CA 94104 gstepanicich@rwglaw.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 nrot, 4 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. General 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\General 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 General 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 General 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 General Counsel have executed this Agreement. CLEAN ENERGY ALLIANCE RICHARDS, WATSON & GERSHON A Professional Corporation ---~ }1 _ -~~ ----===-------------By_...,.... __ ~-~---------- Chair, Board of Directors Dated: u;, Z /1 'i Agreements\General Counsel Gregory W. Stepanicich, Shareholder Dated: 11/8/2019 6 EXHIBIT A SCOPE OF SERVICES As General Counsel for the Authority, Richards, Watson & Gershon shall provide the general legal services typically required by a joint powers authority in addition to those general legal services related more specifically to the operation of a community choice aggregation program as described below. These legal services shall include the following: • Advice and preparation of documents in connection with the start-up of operations for the Authority including but not limited to the following: o Prepare required filings with the Secretary of State and State Controller o Prepare conflict of interest code o Prepare Bylaws • Attendance at Authority Board of Directors ("Board") meetings and any special meetings and workshops as requested by the Chief Executive Officer or Chair of the Board • Brown Act, Conflict of Interest and Public Records Act advice and representation • Preparation or review of consultant and vendor contracts • Advice and preparation of documents related to personnel matters • Advice to the Chief Executive Officer and designated staff on administrative and operational matters • Research and advice on legal questions asked by the Board, Chief Executive Officer and designated staff • Advice and assistance on other legal matters as may be assigned by the Chief Executive Officer Legal services will not include matters in which Richards, Watson & Gershon has a conflict of interest that precludes the law firm from representing the Authority. General Counsel services also will not include energy contracts or regulatory matters before the CPUC that require specialized legal services in these areas oflaw. Agreements\General Counsel A-1 HOURLY RATES Shareholders Associates Paralegals Agreements\General Counsel EXHIBIT B FEE SCHEDULE $335 per hour $275 per hour $175 per hour B-1 Item 5: Appoint General Counsel RECOMMENDED ACTION: That the Board appoint Richards, Watson & Gershon (RWG) as General Counsel, and authorize the Board Chair to execute a Legal Services Agreement in an amount not to exceed $80,000 for Fiscal Year 2019/2020. 11/14/2019 10 Item 5: Appoint General Counsel BACKGROUND AND DISCUSSION: • Section 5.6 of the CEA Joint Powers Agreement requires that the Board appoint a general counsel • Responsible for legal aspects of day-to-day operations of CEA • RWG meets the qualifications required and Greg Stepanicich has been providing joint legal services for Carlsbad and Del Mar since April 2019. 11/14/2019 11