OFFICE OF THE COUNTY COUNSEL

Transcription

1 OFFICE OF THE COUNTY COUNSEL 1221 Oak Street, Suite 450, Oakland, California RICHARD E. WINNIE COUNTY COUNSEL Telephone (510) Facsimile (510) AGEI\IDA November 4,2008 October 30, 2008 HONORABLE BOARD OF SUPERVISORS County of Alameda 1221 Oak Street, Suite 536 Oakland, California SUB..IECT: Approve the Award of an Agreement for Professional Labor Relations Consultant Services Regarding a Project Labor Agreement for the Highland Hospital Acute Tower Replacement Project. President Haggerty and Members of the Board: RECOMMENDATIONS: 1. Approve the award of a Professional Services Agreement (Procurement Contract #2k!L) to Scarth-Lyons & Associates (Michael..I. Vlaming, Esq., Principal, located at 447 Georgia Street, Vallejo, California) for labor relations consultant services related to the Highland Hospital Acute Tower Replacement Project in an amount not to exceed $35,000, for a term beginning November 4, 2008 and extending through the duration of negotiations. 2. Authorize the Office of the County Counsel, in conjunction with the General Services Agency, to negotiate and execute the Professional Services Agreement effective November 4, DISCUSSION: The General Services Agency ("GSA") is actively pursuing the phased design and construction of the Highland Hospital Acute Tower Replacement Project (the "Project"). On..Iuly 29, 2008, your Board directed staff to evaluate a Project Labor Agreement ("PLA") for the Project and to return to the Board with findings. On September 23, 2008, GSA returned to your Board with proposed "deal points" for a PLA. The RFP for the design-build project, issued on September 30, 2008, included notice to the prequalified bidders of the County's intent to enter into a PLA prior to January 31, It is important that the PLA negotiations begin immediately if that deadline is to be met.

2 PROFESSIONAL SERVICES AGREEMENT The County of Alameda (herein also "County") and Scarth-Lyons & Associates (hereinafter, "Sca rth-lyons" or "Consultant(s)") agree as follows: WHEREAS, the County wishes to retain the services of professional labor relations consultants in connection with the matters herein described; WHEREAS, Scarth-Lyons has represented that it has sufficient expertise and is willing and able to provide those services; and WHEREAS, the County Board of Supervisors authorized the County Counsel to enter into this Professional Services Agreement with Scarth-Lyons; NOW, THEREFORE, the parties enter into this Agreement: 1. SCOPE: Attorneys agree to furnish labor relations consultant services including representing the County on matters relating to the negotiation and drafting of a Project Labor Agreement ("PLA") for the construction of the Highland Hospital Acute Tower Replacement Project, under the supervision and direction of the Office of the County Counsel. In performing those services, Attorneys agree to comply with the attached billing guidelines therein, a copy of which is attached as Exhibit A and also incorporated herein by reference and made a part hereof. 2. CONSULTANTS TO PROVIDE SERVICES: It is contemplated that the work to be done by Consultants will be performed by, or under the direction of, Micheal J. Vlaming. 3. TERM: The term of this agreement begins on November 4, 2008 and continues until terminated as hereinafter provided. 4. COMPENSATION RATE: Compensation to Consultants shall be at the rates listed on Exhibit B, which is attached and incorporated herein by reference. 5. PAYMENT: All billing statements should be directed to the County Counsel's Office for initial review and approval, with a copy concurrently sent to Ann Ludwig of the General Services Agency. The billing statements should be provided on approximately a monthly basis (or as otherwise agreed to in writing by the Consultants and County Counsel) detailing each person performing service and a brief description of the work performed. In addition to applicable approved hourly rates, Consultants will be reimbursed for those out-of-pocket expenses, including travel expenses, copying expenses, word processing expenses, telephone expenses, postage expenses, and court reporter's costs as outlined in Exhibit A. Upon approval of the billing by County Counsel, the billing statements will be forwarded to the General Services Agency, Technical Services Department for payment to Consultants. 6. DIRECTION: Consultants services will be provided under the supervision and direction of County Counsel's Office and the GSA Technical Services Department. 7. TERMINATION: This Agreement may be terminated by the County at any time with or without cause. Consultants may terminate this Agreement as provided by law. All files, written material, and documents will be transferred to the County upon such termination, except that Consultants may retain copies made at Consultants' sole expense. Consultants will be available to consult with the County or with County's new

3 consultants in accordance with the terms of this Agreement or as otherwise provided by law with respect to the facts and circumstances of any matters referred to Consultants. 8. ADDITIONAL EXPERT CONSULTANTS: County Counsel will review all requests for extraordinary expenses before the same are incurred by Consultants as set forth in Exhibit A. Consultants will engage no additional expert consultants without having first received the written consent of County Counsel both as to the identity of and assigned task(s) for the consultants and the amount to be paid for the consultant's work. 9. PROFESSIONAL SKILL: Consultants are skilled in the professional calling necessary to perform the work agreed to be done under this Agreement, and understand that the County relies upon the skill of Consultants to do and perform the work in a professional and skillful manner. Consultants agree to perform their work and functions at all times in strict accordance with currently approved methods and practices in their field and in accordance with the legal and ethical standards applicable to such work. 10. MAXIMUM COMPENSATION: Notwithstanding anything in this Agreement to the contrary, the maximum amount of money which the County shall be obligated to pay Consultants under this Agreement shall not exceed the budgeted amount set forth in Exhibit C, as such budget may be modified from time to time. The parties agree to negotiate an amendment to this Agreement to provide for additional compensation and other terms, modifications or additions to this Agreement which are mutually acceptable to the parties. In the event the parties cannot agree on additional compensation or other terms, modifications or additions to this Agreement, this Agreement shall terminate. 11. INSURANCE: a. During the term of this Agreement, Consultants shall maintain comprehensive general liability coverage with aggregate limits in an amount not less than $2 Million, and automobile coverage with combined single limits in an amount not less than $1 Million. Upon County's request, Consultants shall provide County a certificate evidencing this insurance. The County shall be named as an additional insured on each liability and automobile policy providing such coverage. Consultants' coverage shall be primary to any insurance maintained by County. Unless the policy is simultaneously replaced with a new policy providing the same coverage, Consultants shall immediately forward to County any notice of the cancellation or non-renewal of any such coverages, or any other policy changes that materially affect coverage. b. During the term of this Agreement, Consultants also shall maintain professional liability insurance coverage with primary limits in an amount not less than $1 Million per person and $1 Million per incident. Such insurance shall insure Consultants' work to be performed under this Agreement. Upon County's request, Consultants shall provide County a certificate evidencing this insurance. Consultants' professional liability coverage shall be primary to any insurance maintained by County. Unless the policy is simultaneously replaced with a new policy providing the same or greater coverage and limits, Consultants shall provide thirty (30) days advanced written notice to the County of the cancellation or non-renewal of Consultants' professional liability coverage, or any other policy changes that materially affect such coverage. c. During the term of this Agreement, Consultants shall also maintain

4 workers' compensation insurance as required by law. At County's request, Consultants shall provide County a certificate evidencing this insurance. Consultants' workers' compensation insurance shall be primary to any insurance maintained by County. Unless the policy is simultaneously replaced with a new policy providing the same coverage, Consultants shall provide thirty (30) days advanced written notice to the County of the cancellation or non-renewal of said Consultants' workers' compensation insurance, or any other policy changes that materially affect such coverage. 12. EMPLOYER/EMPLOYEE RELATIONSHIP: No relationship of employer and employee is created by this Agreement, it being understood that Consultants shall act hereunder as independent contractors; that Consultants shall not have any claim under this Agreement or otherwise against County for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, workers' compensation, or unemployment insurance benefits, civil service protection, or employee benefits of any kind and that Consultants shall be solely liable for and obligated to pay directly all applicable taxes, including, but not limited to, federal and state income taxes. In connection therewith, the Consultants shall indemnify, defend and hold County harmless from any and all liability which County may incur because of Consultants' failure to pay such taxes. 13. ASSIGNMENT OF CONTRACT: Nothing contained in this Agreement shall be construed to permit assignment or transfer by Consultants of any rights under this Agreement and such assignment or transfer is expressly prohibited and void, unless expressly approved in writing in advance by County. 14. CONFLICT OF INTEREST: No officer, member, or employee of County and no member of their governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Consultants nor any of Consultants' officers, directors, partners or employees shall serve on a County board, committee or hold any such position which either by rule, practice or action nominates, recommends, supervises Attorneys' operations or authorizes funding to Consultants. 15. RECORDS AND AUDITS: Except original documents concerning telephone, copy, postage, telecopy and messenger charges, Consultants will retain all records concerning this Agreement, or microfilm records of them, for a period of at least six years from the date of service. County shall have the right to audit those records which shall be made available by Consultants at County's request. 16. INDEMNITY: To the fullest extent permitted by law, Consultants shall indemnify, defend and hold harmless the County, its officers, employees and agents (collectively "Indemnitees") from any and all claims, losses, loss of profits, damages, liabilities or expenses, including reasonable attorney fees incurred in defense thereof, arising out of the Consultants' performance under this Agreement, including, but not limited to, third-party claims for injury to persons or property damage, to the extent Consultants negligently, intentionally or otherwise failed to perform such services in accordance with paragraph 9 above or the applicable standard of care.

5 17. BREACH: In the event that Consultants fail to perform any of the services described in this Agreement or otherwise breach this Agreement, the County shall have the right to pursue all remedies provided by law or equity. Disputes relating to the performance of this Agreement shall not be subject to non-judicial arbitration. 18. MODIFICATION: No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. RICHARD E. WINNIE, COUNTY COUNSEL County Counsel, County of Alameda DATE: _ By signing above, signatory warrants and represents that he/she executed this Agreement in his/her authorized capacity and that by his/her signature on this Agreement, he/she or the entity upon behalf of which he/she acted, executed this Agreement.

6 EXHIBIT A BILLING GUIDELINES In order to deliver effective and efficient representation of Alameda County and its clients (hereinafter "County"), retained counsel must share in a commitment to perform requested services in a cost-efficient manner. Consequently, County takes responsibility to assist its retained counsel in deciding how best to spend available resources to obtain the desired outcome on transactional matters. All services performed under this agreement and assigned to outside defense counsel will be co-assigned to a specific attorney within the County Counsel Office. All reporting and billing is to be forwarded to the particular attorney assigned. In performing the requested services and in submitting invoices or billing statements for that work, retained counsel shall follow these guidelines. A. General Guidelines 1. General overhead and administrative costs are considered reimbursed by the hourly rate. Therefore, County will not pay costs such as: word processing time, profit on facsimile machines or overtime, premium or socalled "value" billings for consultants, attorneys or staff. 2. As its general policy, County will pay only one consultant or attorney per task. For example, only one consultant or attorney attends a hearing unless there is prior approval by County Counsel. 3. Written approval must be obtained prior to incurring extraordinary expenses such as: investigative services, computer litigation support services, retention of experts, and extraordinary travel. 5. On all fee bills, actual time in units of one-tenth of an hour should be charged instead of using minimum transaction times. 6. Each task should be individually itemized showing the date performed, the nature of the activity, the identity of the individual performing the task, and the time spent. Fee bills should be properly itemized, with a specific time allotted to each task performed. 7. Where correspondence or phone conversations are charged, the specific identity of the other party should be included with the time entry. 8. The bill should include a list of individuals performing services on the file along with their capacity (partner, associate, paralegal, etc.) and hourly rates for services rendered. 9. Charges for activities such as "File Creation", or training of your personnel are considered overhead items and should not be billed to the file. 10. Counsel should not bill for tasks that are secretarial in nature, e.g., using word processor, typing, placing scheduling phone calls, etc.

7 11. Retained counsel should not bill for bill preparation tasks, bill explanations, bill disputes, and bill corrections. 12. Exceptions to the following list of items that County will and will not pay for are permitted only on a specific case basis with written approval from County Counsel. B. Administrative/Overhead/Case Management (charges by secretaries, clerks, or law clerks unless the law clerk is serving in a paralegal role that is needed for the handling of a case). 1. Do not bill for secretarial or administrative time. 2. Do not bill for word processing or "Document Preparation". 3. Do not bill a standard file opening or closing charge. We will pay only for actual attorney or paralegal time expended in legal work. 4. Do not bill us for an associate's apprenticeship time. Apprenticeship time is that which does not contribute to the defense of disposition of the file. Examples: Attending motions argued by more experienced lawyers in the firm, or more than one redraft of a motion, letter or memo. 5. Do not bill for forwarding a Vendor's expense billing for payment by County. 6. Do not unit-bill for reviewing or drafting correspondence. Example: Review of correspondence always billed at a minimum of.5 hours. We pay only for actual legal work to the nearest 1/1 oth of an hour. C. Legal Research 1. Do not bill for legal research that is not focused. Research, if needed, must be carefully directed by partners or senior associates. Obtain prior approval for legal research exceeding one hour if it is not covered in your budget. Routine legal issues should not be the subject of legal research. 2. Confine your legal research to that which is needed. A copy of your research product must be maintained in the attorney's file and forwarded to our office for future reference. Status reports should tell how the research on a substantive issue impacts the case. 3. You may bill for consultant, attorney or paralegal time necessary to do computerized legal research if the research product is authorized by County Counsel; is maintained in the consultant's file; and a copy of the research product is forwarded to County. D. Expenses and Costs Do not bill for the following expense items at more than the specified rates:

8 1. PHOTOCOPYING. No more than actual cost, without mark-up, per page or the actual charge of a copy service. Send large copying jobs to a capable but economical outside copy service. 2. TELEPHONE. Actual charges only for long distance calls. 3. FAX MACHINES. No more than actual cost, without mark-up, only for outgoing facsimile transmission. 4. POSTAGE. Only extraordinary postage can be charged for singular mailings exceeding a combined cost of $1.00 per mailing per file. 5. COMPUTERIZED LEGAL RESEARCH. Actual on-line time costs without markup for a specific item of research that must be identified on the billing entry. 6. MESSENGER AND DELIVERY. Do not bill us if the rush is caused by your firm. For an outside messenger, we pay actual costs without mark-up. For your internal messenger service (between your offices in other cities), charge no more than for an outside service. 7. TRAVEL. Describe in detail on the interim bill any travel expenses incurred by counsel. 8. YOU NEED NOT ATTACH SUPPORTING RECEIPTS. We retain the right to audit these expenses. Counsel should retain receipts and other documentation for at least one year following the conclusion of the case. E. Billing Format 1. Professional Services. Itemize each task on the bill, showing the date performed, the specific task, identity of the individual performing the task (this includes name [initials] and position, i.e., partner, associate, or paralegal), the time to the nearest 1/10 th of an hour spent on the specific task, and the total dollar amount for the specific task per line item. SAMPLE BILLING FORMAT Professional Services Date Description Individual Time Amount 02/05/92 Dictated Short Letter to County Counsel re: [specify matter] 02/05/92 Drafted revisions [specify document] 02/26/92 Telephone Conference to County personnel for information re: [specify matter] 02/26/92 Prepare additional Revisions to [specify]...idp.1 hrs. $ IDP 1.1 hrs. $ DOD.9 hrs. $45.00 DOD.6 hrs $35.00

9 TOTAL $ Individual Identity Position Hourly Rate Time Amount JDP ~'.D. Peel Attorney/Partner hrs. $ DOD Dawn Davis Paralegal hrs TOTAL PROFESSIONAL CHARGES: $ Expenses. Itemize each reimbursable expense at Actual Cost without mark-up. SAMPLE BILLING FORMAT FOR EXPENSES Expenses Date Description Actual Cost Amount 2/26/92 Long Distance Telephone Call by DOD to Mr. Davis Re: [specify matter] /26/92 Extraordinary Postage to Mail [specify documents] Total $12.72 Total Bill Professional Services $ Expenses Total Amount Due $ F. Auditing 1.County has the right and may request an audit of your firm. The audit applies to all matters referred from or handled for or on behalf of the County. 2.County reserves the right to seek reimbursement of inappropriately billed time or expenses.

10 Micheal J. Vlaming $ Alvan E. Mangalindan $ Scott W. Gannon $ Exhibit B HOURLY RATES

11 EXHIBIT C BUDGET The following is the preliminary budget for Scarth-Lyon & Associates' labor relations consultant services to the County for the Project Labor Agreement for the Highland Hospital Acute Tower Replacement Project. Per the Board of Supervisors' approval, this budget has been approved by the Office of the County Counsel and the General Services Agency. INITIAL SCOPE Amount General Advice & Counsel regarding Project $10, Negotiate and Draft Project Labor Agreement $ TOTAL $35,000.00