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HomeMy WebLinkAboutAgenda - 06-24-2008-4cc1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 24, 2008 Action Agenda Item No. ~ -- GG SUBJECT: UNC Landfill Gas Project -Engagement of Specialized Legal Counsel and Conflict of Interest Waiver DEPARTMENT: County Manager's Office and PUBLIC HEARING: (Y/N) No Solid Waste Management ATTACHMENT(S): 1. Legal Services Engagement Letter 2. Conflict of Interest Waiver Consent 3. David M. Meezan, Esq., Resume INFORMATION CONTACT: Gwen Harvey, Assistant County Manager, 245-2307 Gayle Wilson, Solid Waste, 968-2885 Brian Ferrell, County Attorney's Office 732-2196 PURPOSE: To approve the engagement of the law firm of Alston & Bird, LLP, and attorney David M. Meezan, and his associate, Timothy Wang, to assist the County with the final negotiation and drafting of an agreement for a landfill gas recovery project with UNC, and to approve the County's execution of a conflict of interest waiver due to Alston & Bird's representation of UNC in unrelated legal matters. BACKGROUND: On April 15, 2008, the BOCC authorized staff to move forward with the development of a final contract with UNC for a landfill gas recovery project. At that time, the BOCC was informed that the County would seek to engage specialized legal counsel to assist with the negotiation and drafting of a final agreement with UNC. Staff and the County Attorney's office, with the assistance of the County's solid waste consultant, Olver, Incorporated, identified attorney Dave M. Meezan with the law firm of Alston & Bird in Atlanta, Georgia as having the relevant legal experience to advise the County in this matter. Mr. Meezan is a partner in Alston & Bird's Energy Infrastructure, Climate Change and Technology practice group. Mr. Meezan has previously assisted in the negotiation and drafting of similar gas to energy contracts in the past, and has extensive knowledge of the regulatory practices applicable to landfills and the emerging carbon market. Mr. Meezan's resume is attached for a more detailed listing of his relevant experience. UNC has engaged attorney Phillip L. Comella of the Seyfarth Shaw, LLP, law firm in Chicago, Illinois as its legal consultant on this project. Alston & Bird currently represents UNC in certain patent and intellectual- property matters that are unrelated to the landfill .gas project. Alston & Bird has requested, consistent with the rules of professional conduct governing lawyers, that the County execute the attached written conflict waiver due to Alston & Bird's current representation of UNC in other matters. Mr. Meezan has never personally represented UNC. The Alston & Bird attorneys who are or will be involved in the landfill gas project have not been involved in any UNC patent matter, nor will they be involved in any UNC patent matter. Further, Alston & Bird will ensure that any information gathered by it in connection with its representation of Orange County in the landfill gas matter is not accessible to any attorneys who are involved in the patent matters with UNC. It is the opinion of the County Attorney's office that Alston & Bird's representation of UNC in other unrelated patent matters will have no impact on that firm's representation of Orange County in the landfill gas project. FINANCIAL IMPACT: Alston & Bird will bill the County $400 per hour plus expenses for all work done by Mr. Meezan and Mr. Wang. This amount represents a reduction of $100 off the hourly rate of $500 that Mr. Meezan typically charges. It is estimated that the legal fees associated with this matter will be between $40,000-$50,000. Alston & Bird will serve as a sub- consultant to the County under the County's current consultant agreement with Olver Incorporated, and the legal fees and expenses will be paid from the Solid Waste Enterprise Fund. RECOMMENDATION(S): The Manager recommends that the Board: Approve the hiring of Alston & Bird, L.LP, to serve as the County's legal consultant for the landfill gas project, and authorize the Chair to execute the attached legal services engagement letter; and 2. Waive the conflict of interest due to Alston & Bird's representation. of UNC in unrelated legal matters, and authorize the Chair to execute the attached conflict waiver consent letter. 0 p~~TO~~Ba~~~ '~ one Atlantic Center •~ 124t West Peachtree Street Atlanta, GA 343093424 444.881 7000 Fax444.881 7777 www.aiston.com David 1VL Meezan Direct Dial: 904881-934G T?rmail: david.meezan®alsto~n.com May 22, 2008 VIA: ELECTRONIC MAIL Mr. Louis watts Olver Incorporated 8720 Red Oak Boulevard, Suite SOS Charlotte, North Carolina 28217 Dear Louis: We are pleased that Olver Incorporated ("Olver") and Orange County, North Carolina ("Orange County") have chosen Alston & Bird LLI' as their legal counsel. The j purpose of this letter is to confirm the terms of our engagement, We understand that the ! ~ scope and nature of our engagement is to assist Olver and Orange County with the '~ documentation and negotiation of the sale of landfill gas from the Orange County ..; Landfill to The University of North Carolina at Chapel Hill (the "University"). I will be ~ the lawyer ultimately responsible to Olver'and Orange County. My associate, Timothy ,~ ~ Wang, will assist me and will handle much of the drafting responsibilities and day-to-day administration of this matter. i The attorney-client privilege is an important subject that we raise with our clients at the outset of a new representation. As a matter of professional responsibility, we are required to presexve the confidences of our clients. This professional obligation and the '3 legal privilege accorded attorney-client commuunication exists to encourage candid and complete communication between clzent and attorney. The attorney-client privilege .can be Lost if our written or oral comtitunications are shared inappropriately with others, including, under certain circumstances, other employees or representatives of Olver and Orange County. We should discuss in advance any intention of yours.to.include others in . our confidential relationship. 'Throughout the period of this engagement, we'will send monthly statements far our legal services rendered in the previous month, which statements are due upon receipt. Each statement will contain a summary description of legal services for the period covered by the statement. For this matter, we have agreed to charge our legal fees at a blended hourly rate of $400 for the attorneys who will be working on this matter. Aside from legal fees, the statements will include charges for related expenses and services, such as photocopying, computerized research, .travel, long distance Atlanta • Charlotte • Dallas • New York • Research Triangle • Washi»gton, D.C. 0 Mr. Louis Watts May 22, 2008 Page 2 telephone, telecopy, word processing, document production and binding, court costs, delivery service, filing fees and secretarial overtime'to the extent required by a particular assignment. We may request your payment to others or advance payment to us of any expense payment of $250.00 or mare. Should you have a question about any statement, please ca11 me. •~ Although in most cases you will directly employ third parties, such as other ~~ lawyers or experts, to provide services on your behalf, in certain instances, we may employ third parties on your behalf (with your prior consent). In all such instances, you will be responsible either for paying these third pasties directly ox for reimbursing us fox :~ ~ such costs. .j ~, As in any professional relationship where mutual trust and confidence are t bl b i d :~ o e a e r to essential, it is appropriate for either Olver, Orange County, or Alston & B terminate our engagement at any time.by reasonable written notice. Furthermore, in the event we have performed no services far Olver and Orange County for any consecutive 90-day period, we will assume that our engagement has been terminated as of the last day ' we performed services. ~~ ~ if our engagement. is terminated, we understand that Olver and Orange County ~ will take whatever steps are necessary to evidence that we are free from any obligation to 'z perform further, and to pay us fox unpaid fees for Iegal services rendered and charges fox ~ related expenses and services incurred to the date of termination. • ~ This lettex also confirms our discussions in which we disclosed to you that Alston ' & Bird currently represents the University in certain. patent and intellectual property matters. This Letter will confirm that Olver waives any actual or potential conflict of interest that might result from our. representation of the University with respect to such matters. A request that Orange County waive any actual or potential conflict of interest i that might result horn our representation. of the University with respect to such matters will be sent under cover of separate letter. This letter also confirms that the University ,~ ~ has agreed to waive any actual or potential conflict of interest that might result from our representation in this matter. It is also possible that during the time we are representing Olver and Orange County, another client of ours may have a dispute with Olver or Orange County. In order to distinguish those instances in which you consent to our representing such other client from those instances in which you do not consent, you have agreed, as a condition to our '~ undertaking this 'engagement, that during the period of this engagement we will not be ~ Orange precluded from representing clients who may have interests adverse to Olver and County, so long as (1) such adverse matter is not substantially related to oux work far Olver and Orange County and {2) our representation of the other client does not involve pexsons who have been involved in or have access to confidential information regarding our work for. 41ver and Orange County, and an appropriate ethical screen is implemented a 0 :; Mr. Louis Watts May 22, 2008 Page 3 to prevent such persons from communicating on such issues with persons involved in the representation of the other client. ~ We would appreciate Olver and Orange County acknowledging that this letter correctly reflects the terms of our engagement by signing, dating and returning'to me the , enclosed copy of this letter. There is a space for such acknowledgments below my signature. ~ We are delighted that Alston & Bird will be representing Olver and Orange County, and we look forward with enthusiasm and. appreciation to working with you. Sinc ely, D id M. Meezan Acknowledged and agreed to this day of May, 2008. Olver Incorporated By: Name: Title: Orange County, North Carolina By: Name: Title: 0 ,~~L.~TOI~,T~BIRIa ~.~ one Atlantic Center 120] West Peachtree Street Atlanta, GA 30309-3424 404-881-7000 Fa~c404.881'7777 www.alston.com David M lVieezan Du+ecf Dial: 204.881-434fr E-aiaiL• david.meezan~alstoncom June 5, 2408 ''VIA: ELECTRONIC MAIL Brian M. Ferrell, Esq. Coleman; Gledhill, Hargrave & Peek 129 East Tryon Street Hillsborough, NC 27278 Dear Brian: We axe very pleased that Orange County, North Carolina. ("Orange Gounty") has chosen Alston & Bird LLP as its .legal counsel in the landfill gas sale transaction (the "LPG Matter"). contempla#ed with the University of North Carolina at Chapel Hilt ("UNC"}. This letter concerns the terms of the waiver we proposed regarding UNC. As we have discussed, Alston & Bird currently represents UNC in certain gatent ' and intellectual property matters (collectively the "UNC Patent Matters"}. The UNC Patent Matters and the LFG Matter are unrelated, and the Alston Sc Bird attorneys who ~. are involved in the LFG Matter have not been involved in any UNC Patent Matters nor will they be involved in the UNC Patent Matters. Alston & Bird will also ensure that any information we have gathered or will gather in connection with our xepresentation of ' . Orange County in the LFG Matter is not accessible to any attorneys who are involved in the UNC Patent Matters. This letter is to confirm that we have informed Orange County of our representation of UNC in the UNC Patent Matters, and that Orange County waives any actual or potential conflict of interest that might result from our representation of UNC with respect to such matters. As we noted in our engagement letter to Orange County in this matter, the University has agreed to waive any actual or potential conflict of interest , that might result from our representation of.Orange County in the LFG Matter. We would appreciate Orange County acknowledging that this letter ,correctly reflects the terms of the waiver by having the appropriate representative sign, date, and return.to me the enclosed copy of this letter. There is a space for this acknowledgment below my signature. Atlanta * Charlotte • Dallas • New York • Research Triangle • Washington, D.C. 0 Brian M. Ferrell, Esq. 3une 5, 2008 ' Page 2 I appreciate Orange County's consideration of this request. We value our relationship with the County very highly, and look forward to working with you on the LFG Matter. If you have any questions, please do not hesitate to give me a call. With best personal regards. Sin rel , avid M. Meezan 1 i ,. Acknowledgment of and _ Consent to Above Waiver Orange County, North Carolina By: Name: i Title: Date: Zoos ,. i i i ALJI...1~~1 '1 + ~ 117-.D LLP Services Climate Change & Carbon Management Energy & Project Finance Energy & Sustainabillty CleanTech Environmental & Land Use litigation Education Vermont Law School (J.D., 1997) Vermont Law School (M.S.E.L., 1997) Emory University (B.A., 1994) Admitted to Practice Georgia Tennessee Languages French David M. Meezan David Meezan is a' partner In Alston & Bird's Energy Infrastructure, Climate Change and Technology Group. He regularly counsels and advises clients under greenhouse gas emission regulatory schemes in the United States and abroad. He is experienced in structuring and drafting Emission Reduction Purchase Agreements under the Kyoto Protocol's Clean Development Mechanism as well as under domestic voluntary carbon regimes. His practice also concentrates on complex environmental and land use litigation, as welt as regulatory matters arising under the Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air Act, and their state law counterparts. Mr. Meezan also routinely represents clients affected by the U.S. Department of Transportation's hazardous materials transportation regulations. Chambers USA lists Mr. Meezan in environmental law, and notes that he is "very effective for his clients." Chambers.USA adds that Mr. Meezan is "renowned for his skills in hazardous. waste matters, but also advises on greenhouse gas emissions regulations as part of his diverse regulatory practice." He was also selected by Law & Poiit~lcs as a Georgia Super Lawyer Rising Star iri Environmental Litigation for 2005 and 2007. Mr. Meezan received his J.D., magna cum laude, and his Masters of Studies in Environmental Law, magna cum laude, from Vermont Law School in 1997. While in law school, he was a member and assistant articles editor for the Vermont Law Rev/ew. He received his B.A. to international studies and French from Emory University in 1994. He is a member of the State Bars of Georgia and Tennessee. Mr. Meezan is a past chair of the Environmental Law Section for the State Bar of Georgia. Mr. Meezan is an adjunct professor at the Emory University School of Law where he has co-taught a course on corporate environmental law. Mr. Meezan frequently speaks about climate change, David M. Meezan Alston & Sird LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30304-3424 404-881-4346 davld. meezan@a~ston. com 0 A~.L~TCJN + ]& I R.D ivy environmental iitigadon, and hazardous materials transportation topics. He also regularly presents on existing and emerging greenhouse gas regulatory regimes. Most recently, he presented on "'Going Green' Strategies: Legal Considerations for Corporate Environmental Initiatives" at the Annual Meeting for the North Carolina Bar Association's Business Law and Corporate Counsel Sections on February 22, 2008. Representative Experience Counseling corporations on their carbon risks and opportunities.. ' • Advising manufacturers of, emission reduction technologies on availability of greenhouse gas and other emission reduction credits. • Successfully defended local solid waste "flow control" ordinances from constitutional challenge. See Quality Compliance Services, Inc. v. Dougherty County, Georgia, No. 1:05-CV-19 (WLS), 2008 WL 906443 (NI.D. Ga. Mar. 31, 2008). Successfully challenged constitutionality of Georgia statute restricting interstate shipments of waste. See Fulton County v. City of Atlanta, 280 Ga. 353, 629 S.E.2nd 196 (Ga. 2006). • Successfully defended•class-action challenge to presence and use of fiber optic tines constructed across right-of-way easements. See Municipal Electric Authority of Georgia v. Gold-Arrow Farms, Inc., 276 Ga. App. 862, 625 S.E.2d 57 (Ga. Ct. App. 2005). Lead environmental. counsel to largest city in the Southeast on successful $35 million brownfields transaction. Representation of Fortune 50 worldwide transportation and logistics company and Fortune 50 diversified chemical company on hazardous materials safety and security issues in all modes of transportation. Publications • "'Atlantic Research' Leaves Issue for Lower Courts," The National Law7ournal, October 15, 2007. "Climate Change: The Commercial Deployment of Carbon Capture and Storage Technology," Environment Reporter, Vol. 38, No. 37, BNA, September 21, 2007. • "The Commercial peployment of Carbon Capture and Storage Technology," BNA Daily Environment Report, September 19; 2007. "Federal Regulation of Hazardous Materials Taanspartation," Natural Resources & Environment, Fall 2006. io 1~.I.~~~I'CJN ~ BIRD L~ ' "Court Battles Continue Over Recoverability of Envlronrnental Cleanup Costs," Andrews Environmental Litigation Reporter, June 30, 2006. "Recovering Cleanup Costs: When?" The iVatfonal Law Journal, February 27, 2006.