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HomeMy WebLinkAbout1977-05-17; City Council; 5066; Joint advisory committee legal servicesCITY OF CARLSBAD W AGENDA BILL NO. 3~0££> ' • Initial: Dept.Hd. DATE: May 17, 1977 ' DEPARTMENT; Public Works • C. Mgr._ _ Subject: JOINT ADVISORY COMMITTEE LEGAL SERVICES Statement of the Matter ; Legal services for the Encina Joint Advisory Committee (JAC) are presently furnished by Vista in accordance with an agree- ment executed on May 1, 1973. With the resignation of the current Vista attorney it was the opinion of many that this would be an appropriate time to go to a private firm rather than a member agency for legal services. Staff has recommended to JAC, and JAC has unanimously recom- mended to their respective member agencies, that Roy H. Gann of the firm of Walker and Gann, Attorneys at Law, be retained to provide legal services. The attached agreement has been prepared by the present JAC legal counsel and has been reviewed by our City Attorney. It provides for the cancellation of our previous agreement with Vista and retention -of the firm of .Walker and Gann. Exhibits: 1. Proposed agreement for legal services. 2. Resolution No . 3"^ $£, approving agreement. Recommendation : That City Council adopt Resolution No. *?6&*j> approving pro- posed agreement for legal services and authorizing the Mayor to sign on behalf of the City. Council Action: 5-17-7-7 Resolution No. 5082, approving an agreement for legal services and authorizing the Mayor to execute the agreement on behalf of the City, was adopted. 1 4 6 7 8 9 10 11 12 13 11 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAUL B. PRESSMAN CITV ATTORNEY 2OO WEST BROADWAY rOST OFFICE BOX 188 VISTA, CALIFORNIA O7O83 (714) 72G-134O AGREEMENT AMONG THE VISTA SANITATION DISTRICT, THE CITY OF CARLSBAD, BUENA SANITATION DISTRICT, SAN MARCOS COUNTY WATER DISTRICT, LEUCADIA COUNTY WATER DISTRICT AND ENCINITAS SANITARY DISTRICT FOR LEGAL SERVICES . THIS AGREEMENT (hereinafter referred to as "Agreement for Legal Services"), is made and and entered into as of the 16th day of May, 1977, by and among: VISTA SANITATION DISTRICT ("Vista"), a county sanitation district whose governing board is the City Council of the City of Vista; CITY OF CARLSBAD ("Carlsbad"), a municipal corporation; BUENA SANITATION DISTRICT ("Buena"), a county sanitation district whose governing board is the Board of Supervisors of San Diego County; SAN MARCOS COUNTY WATER DISTRICT ("San Marcos"), a county water district; LEUCADIA COUNTY WATER DISTRICT ("Leucadia"), a county water district; and ENCINITAS SANITARY DISTRICT ("Encinitas"), a sanitary district; hereinafter collectively referred to as "Owners", and WALKER AND GANN, Attorneys at Law, hereinafter referred to "Attorneys". RECITALS A. Owners are parties to a basic agreement for construction, operation and maintenance of a joint sewerage system, as amended, supplemented and modified, (hereinafter referred to as "Basic Agreement"), whereby Carlsbad is designated as Administrator and is authorized to supervise and administer the contract between the. -1- 1 Owners and the County of San Diego (hereinafter referred to as 2 "County"), which is designated as "Operator" and is responsible 3 for operation and maintenance of the joint sewerage system. 4 B. It is necessary for the construction, operation and 5 maintenance of the joint sewerage system that the Joint Advisory 6 Committee, Administrator and Operator obtain legal services from 7 time to time consisting of advice and counsel, representation g before courts and administrative agencies, review and preparation 9 of necessary documents and agreements, and attendance at meetings IQ and conferences as requested by the Joint Advisory Committee, 11 Administrator or Operator. 12 c- Section 6500, et seq, of the Government Code authorizes 13 Owners to jointly exercise any power or powers common to them and 14 such power includes the engagement of attorneys for the perform- 15 ance of legal services. 10 D. Attorneys are specially trained and possess special 17 skills, experience, education and competency to perform the lg services required by Owners and Owners desire to engage Attorneys 19 for such special services upon the terms hereinafter provided. 20 NOW, THEREFORE, in consideration of the promises and mutual 21 covenants and agreements herein contained, the parties hereby 22 agree as follows: 23 1. Employment of Attorneys. Owners hereby agree to hire 24 and engage Attorneys, and Attorneys agree to perform the profes- 25 sional services and advice as hereinafter set forth. 26 2. Administrator of Agreement. The Administrator shall be 27 Owners' representative for the purpose of the administration of 28 this Agreement. -2- 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 V 20 21 22 23 24 25 26 27 28 3. Scope of Services. Attorneys shall provide special knowledge, services and skills and shall perform as follows: Attorneys are expected to provide the services of Roy H. Gann, Attorney at Law, as the principal attorney providing services pursuant to this Agreement; however, Attorneys may also be expected to provide the services of Russell W. Walker, Attorney at Law, from time to time as may be necessary. Services performed pursuant to this Agreement shall include advice and counsel in connection with the construc- tion, operation and maintenance, and management of the joint sewerage system, including preparation and review of necessary documents and agreements and attendance at meet- ings and conferences upon the request of the Joint Advisory Committee, the Administrator or the Operator. Such services shall also include appearances in court and before adminis- trative agencies to represent Owners, including prosecu- tion and defense of any actions, proceedings, claims or counterclaims, actions in eminent domain, and applications for grants and permits. Such services shall also include other legal services of a miscellaneous nature not specifi- cally enumerated herein which relate to the construction, operation and maintenance, and management of the joint sewerage system. Such services shall specifically include, but not be limited to, preparation of pleadings and briefs, participa- tion in discovery procedures such as depositions, interroga- tories and others, attendance at pretrial or pre-hearing 1 conferences, preparation for and conduct of trials and 2 hearings, prosecuting and defending appeals, and investi- 3 gation with regard to possible settlements and formulation 4 of recommendations to Owners with regard thereto. 5 4. Term of Agreement. The term of this Agreement shall 6 commence upon the date first above written, and shall end upon 7 termination as herein provided, 8 5. Compensation. For and in consideration of the services 9 to be provided by the Attorneys as herein provided, Owners agree 10 to compensate and pay Attorneys, through the Administrator on 11 behalf of Owners, the amounts, and at the times, set forth in 12 Section 6 hereof. 13 6. Amount and Method of Payment. Compensation under this 14 Agreement shall be billed and paid in arrears as follows: 15 (a) Fees. Attorneys' fees shall be billed and paid lb monthly in arrears as follows: 17 (1) In Office: At the rate of $50 per hour. 18 (2) Out of Office: Fees for performance of 19 services out of Attorneys' offices, for the \ 20 attendance at meetings, preparation and trial 21 or hearing time shall be billed at the rate of 22 $50 per hour, including travel time, not to 23 exceed $500 per day. 24 (b) Costs and Disbursements. Costs and disbursements, 25 necessarily incurred by Attorneys in connection with the 26 services to be provided hereunder, including travel, meals 27 and lodging outside the County of San Diego, printing, 28 publishing, actual court costs, cost for depositions, -4- 1 documentary evidence, exhibits, filing fees, witness fees, 2 | printing of briefs, long distance telephone charges, copying 3 costs at the rate of 12 cents per page, and other similar 4 I expenses, but excluding ordinary office expenses. 5 (c) Contractual, arrangements with expert and other 6 witnesses shall be arranged with the approval of and pursuant 7 to contract with the Administrator upon approval by the Joint 8 Advisory Committee and the Administrator. 9 Attorneys shall, at least monthly, bill the Owners for the 10 services rendered and reimbursements claimed under this Agreement; 11 such bills shall be submitted to the Administrator and shall detail 12 the services performed and reimbursement claimed. 13 7. Attorneys' Employees and Equipment. Attorneys agree 14 that they have secured or will secure at their own expense except 15 as herein provided, all persons, employees and equipment required 16 to perform the services required under this Agreement, and that 17 all such services will be performed by Attorneys, or under 18 Attorneys' supervision, by persons authorized by law to perform 19 such services. If any arrangement is made whereby employees of 2b any of the Owners are used by Attorneys and are subject to their 21 supervision and control, they shall, while engaged in such work 22 be considered for all purposes, as employees, servants, or agents 23 of the Attorneys and not of such Owners, irrespective of party 24 paying them. Attorneys shall exonerate, indemnify and hold harm- 25 less all Owners from and against any and .all loss, damage or 26 expense, by reason of any act or omission of any employee, servant 27 or agent of Attorneys including those, if any, originally employed 28 by any Owner and utilized by Attorneys, and Attorneys agree .to -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defend, at Attorneys' own expense, any suit or suits that may be brought against any owner by reason of any such act or omission. No owner shall be responsible nor be held liable for any damage to persons or property consequent upon the use, misuse, or failure of any equipment used by /attorneys or any of their employees, even though such equipment be furnished, rented, or loaned to Attorneys by any owner. The acceptance or use of any such equipment by Attorneys or any of their employees shall be construed to mean that Attorneys accept full responsibility for and agree to exonerate, indemnify and save harmless all owners from and against any and all claims for any damage whatsoever resulting from the use, misuse or failure of such equipment, whether such damage be to the employee or property of Attorneys, other contractors, any owner, or of other persons. Equipment includes, but is not limited to, I material, tools, or other things. 8. Audit and Inspection of Records. At any time during normal business hours and as often as the Administrator may deem necessary, Attorneys shall make available to Administrator for examination at reasonable locations within the County of San Diego all of Attorneys' records and data with respect to all matters covered by this Agreement and Attorneys will permit the Adminis- trator to audit, examine and make excerpts or transcripts from such data and records, and to make audits of all invoices, materials, payrolls, records of personnel and other data relating to all matters covered by this Agreement. Attorneys shall main- tain such data and records in an accessible location and condition for a period of not less than four years follox^ing receipt of final payment under this Agreement unless the Administrator agrees to an -6- 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 earlier disposition. The State of California or any federal agency having an interest in the subject of this Agreement shall have the same rights conferred upon the Administrator by this paragraph. 9- Termination of Agreement. This Agreement shall continue until terminated. It may be terminated by Attorneys at any time, upon reasonable written notice. It may be terminated by action of those owners owning over fifty percent (50%) of the capacity of the joint sewerage system by giving written notice thereof to Attorneys at least thirty (30) days in advance of the effective date of termination. In the event of termination, Attorneys shall be paid for services rendered up.to the effective date of termination. 10. Personal Performance. Attorneys shall personally provide and perform the services herein described, except those regular associates or employees of Attorneys whose names are set forth below may be assigned to assist Attorneys in the performance of this Agreement: ROY H. GANN, Attorney at Law, and RUSSELL W. WALKER, Attorney at Law. It is expressly understood and agreed 20 that Attorneys shall engage or require the services of no other 21 person, by subcontract or otherwise, to provide or assist in pro- 22 viding such services without the express written consent of the 23 Join Advisory Committee, provided, however, that this provision 24 shall not apply to secretarial, clerical, routine mechanical and 25 similar incidental services needed by Attorneys to assist in the 26 performance of this Agreement. Attorneys shall not hire any of 27 the owners' employees to perform any portion of the work or 28 services provided for herein including secretarial, clerical and -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /"**"**• x****\ similar incidental services except upon the written approval of such owner. Performance of services under this Agreement by associates or employees of Attorneys shall not relieve Attorneys from any responsibility under this Agreement. 11. Assignability. The Attorneys shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without the prior written consent of the owners thereto; provided, however, that claims for money due or to become due to Attorneys from the owners under this Agreement may be assigned without such approval. Notice of any such assignment or transfer shall be furnished promptly to the owners. 12. Interest of Attorneys. Attorneys .covenant that they presently have no interest, including, but not limited to, other projects or independent contracts, and shall not acquire any such interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement, except upon the written consent of each of the owners. Attorneys further covenant that in the performance of this Agreement no person having any such interest shall be employed or retained by them under this Agreement. Owners and Attorneys acknowledge that Attorneys are presently representing the County of San Diego and the Air Pollution Control District thereof in legal actions by major oil companies challenging vapor recovery regulations and Owners consent to the continuance of such representation while Attorneys are performing services providec pursuant to this Agreement. 13. Findings Confidential. Any reports, information, data, 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statistics, forms, procedures, systems, studies and any other communication or form of knowledge given to or prepared or assembled by Attorneys under this Agreement which any owner, the Joint Advisory Committee, the Administrator or Operator requests to be kept confidential shall not be made available to any individual or organization by Attorneys without the prior written approval of the person making such request. 14. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information., data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties produced under this Agreement shall be the sole and exclusive property of the owners. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyright or patent right by Attorneys in the United States or in any other country without the express written consent of the owners. The owners shall have unrestricted author- ity to publish, disclose, distribute and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 15. Insurance and Hold Harmless Agreement. Attorneys agree to maintain such insurance as will fully protect both Attorneys and the owners, Joint Advisory Committee, the Administrator and Operator from any and all claims under any workmen's compensation act or employer's liability laws, and from any and all other, claims of whatsoever kind or nature for the damage to property or for personal injury, including death, made by anyone whomsoever which may arise from operations carried on under this Agreement, either 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by Attorneys, any subcontractor or by anyone directly or indirectly engaged or employed by either of them. Attorneys shall exonerate, indemnify and hold harmless the owners, the Joint Advisory Commit- tee, the Administrator and the Operator from and against, and shall assume full responsibility for payment of,all federal, state and local taxes or contributions imposed or required under unemploy- ment insurance, social security and income tax laws, with respect to Attorneys and Attorneys' employees engaged in performance of this Agreement. The owners, the Joint Advisory Committee, the Administrator and Operator, and its agents and employees, shall not be held liable for any liabilities, penalties or forfeitures, or for any damage to the goods, properties or effects of Attorneys, or of any other persons whatsoever, nor for personal injury to or death of them, whether caused by or resulting from any negligent- act or omission of Attorneys. The provisions of this paragraph do not relieve the owners, the Joint Advisory Committee, the Adminis- trator and the Operator of its and their liability for damages to Attorneys caused by the negligent acts or omissions of any of the owners, Joint Advisory Committee, the Administrator or the Operator Attorneys further agree to indemnify and hold harmless the agents and employees of the owners, the Joint Advisory Committee, the Administrator and the Operator, against and from any and all of the foregoing liabilities, and any and all costs and expenses incurred, by any of them on account of any claim therefor. Attorneys agree to assume the foregoing liabilities and obligations, by which it is intended by the parties that Attorneys shall indemnify and hold harmless the owners, the Joint Advisory Committee, the Administra- tor and the Operator from all claims arising by reason of the work -10- 6 7 8 9 10 11 19 20 21 22 23 24 25 26 27 28 done by reason of any act or omission of Attorneys. ^-6. Notice. Any notice or notices required or permitted to be given pursuant to this Agreement may be personally served on the other party by the party giving such notice,, or may be served by certified mail/ postage prepaid, return receipt requested, to the following addresses: Owners: Encina Joint Sewerage System c/o City of Carlsbad, Administrator 1200 Elm Avenue Carlsbad, California 92008 Attn: Encina Joint Sewerage System Manager Attorneys: Walker and Gann, Attorneys at Law 333 South Juniper, Suite 214 P. O. Box 788 Escondido, California 92025 12 17. Independent Contractor. It is agreed that the owners 13 are interested only in the results obtained and that Attorneys shal 14 perform as an independent contractor with sole control of the 15 manner and means of performing the services required under this16 Agreement. Attorneys shall perform this Agreement according to •jo their own means and methods of work which shall be in the exclu- sive charge and control of Attorneys and which shall not be sub- ject to control or supervision by the owners, the Joint Advisory Committee, the Administrator and the Operator except as to the results of the work. Attorneys are, for all purposes arising out o this Agreement, an independent contractor, and they shall not be deemed an employee of the owners, the Joint Advisory Committee, the Administrator and Operator. It is expressly understood and agreed that Attorneys shall in no event be entitled to any bene- fits to which employees of the owners, the Administrator and the Operator are entitled, including, but not limited to, overtime, -11- w I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any retirement benefits, workmen's compensation benefits, and injury leave or other leave benefits. 18. This Agreement shall be construed and interpreted according to the laws of the State of California. .19. Cancellation. The owners hereby cancel and terminate the AGREEMENT BETWEEN THE CITY OF CARLSBAD, VISTA SANITATION DISTRICT, BUENA SANITATION DISTRICT, AND SAN MARCOS COUNTY WATER DISTRICT FOR LEGAL SERVICES dated May 1, 1973. 20. Counterparts. This Agreement may be executed in counterparts, and upon execution thereof by all parties set forth on page 1 hereof, each such counterpart shall be deemed to be an original. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its representative officials here- tofore duly authorized. WALKER AND GANN Attorneys at Law Approved by Resolution I No. on VISTA SANITATION DISTRICT By: Chairman CITY OF CARLSBAD ' Approved by Resolution No• 5082 on May 17. 1977 Approved by Resolution No. on Mayor BUENA SANITATION DISTRICT By: Clerk, Board of Supervisors 1 RESOLUTION NO. 5082 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD AUTHORIZING AND DIRECTING THE MAYOR TO 3 EXECUTE AN AGREEMENT FOR LEGAL SERVICES 4 The City Council of the City of Carlsbad does hereby resolve as follows: 1. That the Mayor of the City of Carlsbad is hereby 8 authorized and directed to execute, on behalf of the City of Carlsbad, that certain Agreement Among the Vista Sanitation 10 District, the City of Carlsbad, Buena Sanitation District, San 11 Marcos County Water District, Leucadia County Water District 12 and Encinitas Sanitary District for Legal Services, a copy of 13 which is attached hereto and by this reference incorporated 14 herein. 15 PASSED, APPROVED AND ADOPTED at a regular meeting of 16 the City Council of the City of Carlsbad, California, held 17 May 17, 1977 by the following vote, to wit: 18 AYES: Councilmen Frazee, Lewis, Packard and Councilwoman Casler 19 NOES: None 20 ABSENT: Councilman SkotnjcM 21 _ _^ Cf-Cf. ROBERT C\ FRAZEE, MAYJjR 22 23 ATTEST: 24 25 5T E. ADAMS City Clerk 26 27 (SEAL) 28