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Contract - Burns, Esq., Alan R. - 2015-02-26AGREEMENT FOR CONSULTANT SERVICES This Agreement ( "AGREEMENT') is made and effective as of 2P 2015, between the Costa Mesa Sanitary District, a sanitary district ( "DISTRICT'), an Harper & Burns LLP, a limited liability partnership including a professional corporation ( "CONSULTANT'). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, Alan R. Burns of Harper & Burns LLP has served as attorney for the DISTRICT since 1994; and and WHEREAS, the parties desire to contract with the firm of Harper & Burns LLP; WHEREAS, the last compensation adjustment was in 2008; and WHEREAS, the parties desire to adjust the compensation to take into account CPI and what other relevant districts pay their counsel; NOW, THEREFORE, the parties hereto agree as follows: 1. TERM This AGREEMENT shall commence on 2015, and shall remain and continue in effect until either party terminates. 2. SERVICES CONSULTANT shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full: 1. Provide legal advice to the Board and to the General Manager and, when approved by the Board or General Manager, to the staff. 2. Draft ordinances and, when requested, resolutions, for the Board. 3. Review and /or prepare construction contracts and documents. 4. Litigate actions by or against DISTRICT when not covered by insurance counsel, or as otherwise requested. 5. Attend all regular meetings of the Board of Directors unless excused, and attend monthly staff meetings. Attend such other meetings of the Board and staff as are necessary or upon request. PsA 12 10 6. Review other DISTRICT contracts. 7. Prepare opinion letters to the auditors. 8. Provide proactive advice on legal developments. 9. Perform other legal services as requested. 3. PERFORMANCE CONSULTANT shall, at all times, faithfully, competently, and to the best of its ability, experience, and talent perform all tasks described herein. CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONSULTANT hereunder in meeting its obligations under this AGREEMENT. 4. INTERACTION CONSULTANT has an attorney /client relationship with the Board of Directors and will at limes need to communicate directly with the Board. At other times, and working with staff, CONSULTANT shall interface with the General Manager. 5. COMPENSATION CONSULTANT will bill at hourly rates, by the tenth of the hour. An itemized bill shall be provided showing tasks performed. The rates approved in this contract are attached hereto in Exhibit A. These rates may be changed by agreement and memorialization of the Board in a minute action, which may thereafter be attached to the contract as the new rate structure. DISTRICT agrees to pay invoices promptly in accordance with its procedures. CONSULTANT shall also be paid for its expenses including substantial printing, postage, messenger services, filing services and service of process costs. 6. Termination This AGREEMENT may be terminated without cause by either party upon providing thirty (30) days notice. 7. OWNERSHIP OF DOCUMENTS (a) CONSULTANT shall maintain complete and accurate records with respect to the professional services required by this AGREEMENT and will produce the work product specified in this Agreement and other such information required by DISTRICT that relate to the performance of services under this AGREEMENT. CONSULTANT 2 PSA 12 10 shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. CONSULTANT shall provide free access to the representatives of DISTRICT or its designees at reasonable times to such books and records; shall give DISTRICT the right to examine and audit said books and records; shall permit DISTRICT to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this AGREEMENT. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion, termination, or suspension of this AGREEMENT, all work products reduced to any medium and other documents prepared in the course of providing the services to be performed pursuant to this AGREEMENT shall become the sole property of the DISTRICT and may be used, reused, or otherwise disposed of by the DISTRICT without the permission of the CONSULTANT. With respect to computer files, CONSULTANT shall make available to the DISTRICT, at the CONSULTANT's office and upon reasonable written request by the DISTRICT, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files. Said software and hardware shall be made available to DISTRICT at CONSULTANT's cost. 8. INDEMNIFICATION (a) Indemnification for Professional Liabilitv. When the law establishes a professional standard of care for CONSULTANT's services, to the fullest extent permitted by law, CONSULTANT shall indemnify, protect, defend, and hold harmless DISTRICT and any and all of its officials, employees, and agents from and against any and all losses, liabilities, damages, costs, and expenses, including attorney's fees and costs to the extent the same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, its officers, agents, employees, or subconsultants (or any entity or individual that CONSULTANT shall bear the legal liability thereof) in the performance of professional services under this AGREEMENT. (b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the fullest extent permitted by law, CONSULTANT shall indemnify, defend, and hold harmless DISTRICT and any and all of its employees, officials, and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses, or costs of any kind, whether actual, alleged, or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, pertain to, relate to, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this AGREEMENT by CONSULTANT or by any individual or entity for which CONSULTANT is legally liable, including, but not limited to, officers, agent, employees, or subconsultants of CONSULTANT. PSA 12 10 9. INSURANCE CONSULTANT shall maintain prior to the beginning of and for the duration of this AGREEMENT insurance coverage as specified in Exhibit B attached to and made part of this AGREEMENT. 10. INDEPENDENT CONSULTANT (a) CONSULTANT is and shall at all times remain as to the DISTRICT a wholly independent consultant. The personnel performing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT's exclusive direction and control. Neither DISTRICT nor any of its officers, employees, or agents shall have control over the conduct of CONSULTANT or any of CONSULTANT's officers, employees, or agents, except as set forth in this AGREEMENT. CONSULTANT shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the DISTRICT. CONSULTANT shall not incur or have the power to incur any debt, obligation, or liability whatsoever against DISTRICT or bind DISTRICT in any manner, (b) No employee benefits shall be available to CONSULTANT in connection with the performance of this AGREEMENT. Except for the fees paid to CONSULTANT as provided in the AGREEMENT, DISTRICT shall not pay salaries, wages, or other compensation to CONSULTANT for performing services hereunder for DISTRICT. DISTRICT shall not be liable for compensation or indemnification to CONSULTANT for injury or sickness arising out of performing services hereunder. 11. LEGAL RESPONSIBILITIES The CONSULTANT shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this AGREEMENT. The CONSULTANT shall at all times observe and comply with all such laws and regulations. The DISTRICT and its officers and employees shall not be liable at law or in equity occasioned by failure of the CONSULTANT to comply with this Section. 12. UNDUE INFLUENCE CONSULTANT declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the DISTRICT in connection with the award, terms, or implementation of this AGREEMENT, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the DISTRICT will receive compensation, directly or indirectly, from CONSULTANT or from any officer, employee, or agent of CONSULTANT in connection with the award of this AGREEMENT or any work to be conducted as a result 4 PSA 12 10 of this AGREEMENT. Violation of this Section shall be a material breach of this AGREEMENT entitling the DISTRICT to any and all remedies at law or in equity. 13. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of DISTRICT, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to the project during his /her tenure or for one year thereafter shall have any interest, direct or indirect, in any agreement or sub - agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this AGREEMENT. 14. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by CONSULTANT in the performance of this AGREEMENT shall be considered confidential and shall not be released by CONSULTANT without DISTRICT's prior written authorization. CONSULTANT and its officers, employees, agents, or subconsultants shall not, without written authorization from the General Manager, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this AGREEMENT or relating to any project or property located within the DISTRICT. Response to a subpoena or court order shall not be considered "voluntary" provided CONSULTANT gives DISTRICT notice of such court order or subpoena. (b) CONSULTANT shall promptly notify DISTRICT should CONSULTANT or its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this AGREEMENT or the work performed thereunder or with respect to any project or property located within the DISTRICT. DISTRICT retains the right, but has no obligation, to represent CONSULTANT and /or be present at any deposition, hearing, or similar proceeding. CONSULTANT agrees to cooperate fully with DISTRICT and to provide the opportunity to review any response to discovery requests provided by CONSULTANT. However, DISTRICT's right to review any such response does not imply or mean that DISTRICT has a right to control, direct, or rewrite said response. (c) CONSULTANT covenants that neither it nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having such interest shall be employed by it/them as an officer, employee, agent, or subconsultant. CONSULTANT further covenants that CONSULTANT has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and /or property owner(s) and /or firm(s) and /or partnership(s) owning property in the DISTRICT or the study area and further covenants and agrees that CONSULTANT and /or its subconsultants shall provide no service or enter into any 5 PSA 1210 agreement or agreements with a /any developer(s) and /or property owner(s) and /or firm(s) and /or partnership(s) owning property in the DISTRICT or the study area prior to the completion of the work under this AGREEMENT. 15. NOTICES Any notices which either party may desire to give to the other party under this AGREEMENT must be in writing and may be given by: (i) personal service, (ii) delivery by a reputable document delivery service, such as, but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To DISTRICT: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: District Clerk To CONSULTANT: Harper & Burns LLP 453 South Glassell Street Orange, California 92866 Attn: Alan R. Burns 16. LICENSES At all times during the term of this AGREEMENT, CONSULTANT shall have in full force and effect all licenses required of it by law for the performance of the services described in this AGREEMENT. i �KGI9 411` 1 101 [H Aa1 UJ DISTRICT and CONSULTANT understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this AGREEMENT and also govern the interpretation of this AGREEMENT. Any litigation concerning this AGREEMENT shall take place in the superior or federal district court with jurisdiction over the DISTRICT. 18. ENTIRE AGREEMENT This AGREEMENT contains the entire understanding between the parties relating to the obligations of the parties described in this AGREEMENT. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this AGREEMENT and shall be of no further force or effect. PSA 12 10 Each party is entering into this AGREEMENT based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 19. MODIFICATION No modification to this AGREEMENT shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. This written modification requirement cannot be waived. 20. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this AGREEMENT on behalf of CONSULTANT warrant(s) and represent(s) that he/she /they has /have the authority to execute this AGREEMENT on behalf of the CONSULTANT and has /have the authority to bind CONSULTANT to the performance of its obligations hereunder. 21. INTERPRETATION In the event of conflict or inconsistency between this AGREEMENT and any other document, including any proposal or Exhibit hereto, this AGREEMENT shall control unless a contrary intent is clearly stated. / H H H / H H H 7 PSA 1210 IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed this day and year first above written. (Board Approval) COSTA MESA SANITARY DISTRICT Michael Scheafe , President Robert Ooten, Secretary FORMER mm PSA 12 10 HARP �& BUR 5 LLP � ;�� Alan R. Burns, Partner EXHIBIT A Position Hourly Rate Partner, Senior Attorney $197.00 (5 years +) Associate Attorney $145.00 Law Clerk $90.00 Paralegal $82.00 EXHIBIT A PSA 12 10 EXHIBIT B • Business liability insurance or commercial general liability insurance of at least One Million Dollars. • Automotive insurance on all vehicles used in the performance of work under this contract. • Workers compensation insurance in the statutory amount. • Professional (errors & omissions) insurance in the amount of One Million Dollars. EXHIBIT B PSA 12 10