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Contract - Burns, Esq., Alan R. - 1995-01-02 LEGAL COUNSEL AGREEMENT THIS AGFEDIENT is made and entered into this second day of January, 1995 by and between COSTA MESA SANITARY DISTRICT, a local agency organized and existing by virtue of the Sanitary District Act of 1923 (hereinafter "DISTRICT") and ALAN R. BURNS, an attorney licensed by and practicing in the State of California (herein- after "BURNS") . • RECITALS 1. THIS AGREEMENT is made pursuant to the provisions of the laws of the State of California with specific reference to Section 6148, Business & Professions Code. 2. DISTRICT desires to retain BURNS as its General Counsel under terms and conditions as shall hereinafafter appear. 3. BURNS desires to represent the DISTRICT as its General Counsel under terms and conditions as shall hereinafter appear. 4. The parties hereto desire, by THIS AGREEMENT, to set forth their respec- tive rights and obligations in connection with said retainer and representation. NOW, .BEREFORE, for and in consideatiorr of the covenants contained herein, performed and to be performed, the parties hereto agree as follows: • I .BURNS' REPRESENTATIONS BURNS makes the following representations in connection with THIS AGREEMENT and his appointment as General Counsel for the DISTRICT: 1. That he has been an attorney licensed to practice by the State of California in excess of five (5) years. 2. That he has as of the date of THIS AG2EQ4ENT no disciplinary proceed- ings pending against him before the State Bar of California. 3. That he has and will continuously maintain a law office separate from the DISTRICT office with adequate library, furniture, fixtures and staff to perform the services required by THIS AGREEMENT. • 4. That he has and will maintain continuously through the term of THIS AGREEMENT errors and emissions insurance coverage of One Million ($1,000,000.00) Dollars or more and will provide proof of said insurance coverage upon request of DISTRICT. 5. That through his practice he has became proficient in the application of the following legislative acts which affect DISTRICT: - (a) Sanitary District Act of 1923 (b) California Integrated Waste Management Act of 1989 (c) Political Reform Act of 1974 (d) The Ralph M. Brown Act (e) Local ;-agency Public Construction Act (f) Cortese•-Knox Local Government Reorganization Act. II DISTRICT'S REPRESENTATIONS DISTRICT makes the following representations in connection with THIS AGREE- MENT: - 1. That it is a duly constituted district organized and existing continu- - ously since 1944 pursuant to the Sanitary District Act of 1923 (the "ACT") and is under no legal disabili`" to enter into THIS AGREEMENT. -1- • 2. That . it is empowered ba the ACT (§6493) to retain BURNS as General Counsel. 3. That by official action of the Board of an adjourned meeting on Novem- ber 28, 1994, all members being present, BURNS was unanimously appointed General Counsel for the DISTRICT and THIS AGREEMENT was authorized to be prepared, setting forth the obligations of each party. III SERVICES REQUIRED BURNS shall be required by THIS AGREEMENT to perform the foilowinc services when, as, and if needed: 1. Defend DISTRICT on all legal actions (except those where defense '` provided by insurance carriers) 2. Prosecute on behalf of DISTRICT civil cases and ordinance violations 3. Represent DISTRICT before all federal, state, county and local agencies and all courts of the State 4. Draft ordinances and resolutions 5. Prepare annexation and detachment documents to be processed through the Local Agency Formation Commission 6. Process claims for and against DISTRICT 7. Draft construction contracts 8. Administer contracts and leases between DISTRICT and others 9. Prepare written legal opinions as required by the Board or requested by the Staff through the Board 10. Oversee solid waste disposal and liquid waste disposal annual assess- ment district proceedings 11. Advise the Board on personnel matters 12. Prepare litigation/claims opinion letters for DISTRICT auditors 13. Oversee records destruction program with DISTRICT Manager and Clerk 14. Attend all regular monthly and any special meetings of the Board of DISTRICT 15. Attend all Board study sessions 16. Attend monthly Staff agenda meetings 17. Assist iii preparation of DISTRICT and City/DISTRICT annual budget 18. Prepare any DISTRICT franchise agreements required by the Board 19. Counsel and advise the Board and Staff on all legal matters relating to the DISTRICT. In addition to the above-enumerated services, BURNS is required to anticipate the normal legal needs of the DISTRICT and to take appropriate action for the bene- fit of and the protection of the DISTRICT and its Board and Staff. IV COMPENSATION BURNS shall be paid a basic retainer of Eight Hundred Fifty ($850.00) Dollars per month for which he will perform the first ten (10) hours of services per month and thereafter all hours of services shall be billed to the DISTRICT at One Hundred Five ($105.00) Dollars per hour. _ Invoices for the current month, of services shall be prepared and mailed to DISTRICT Financial Officer at least five (5) days before the end of the calendar month for inclusion on the warrant list to be approved at the regular Board meeting the following month. Invoices for services beyccd the first ten (10) hours per month shall specify the service performed and the hours or fractions of hours spent on each service. -2- • • • BURNS will pay for postage, copies and FAX. DISTRICT will pay extraordinary costs provided BURNS obtains prior consent from the Board for the expenditure. If the Board approves that portion of the warrant list containing BURNS' invoice of the regular meeting the following month, the Board's warrant for payment will be delivered to BURNS at that meeting. TER4 The initial term of THIS AGREEMENT shall be for one (1) vPar with performance evaluation at the end of the first six (6) months and at the end of the second six (6) months. Thereafter, providing BURNS' performance is satisfactory to DISTRICT. THIS AGREEMENT shall be terminated only for any one of the following reasons: 1. Upon death of BURNS 2. If BURNS becomes mentally or physically unable to perform the services required by THIS AGREEMENT 3. If BURNS becomes insolvent and makes an assignment to the hPnefit of creditors or is declared a bankrupt or BURNS' assets are administered in any type of creditor proceedings 4. If BURNS refuses to perform the services provided for in THIS AGRffi= 5. If DISTRICT is dissolved or merged with another governmental agency by decision of the Board, mandate of the electorate, or order of the court _ 6. At the Board's discretion. Upon termination for any of the foregoing causes, BURNS shall be entitled to receive only the compensation accrued but unpaid as of the date of termination and shall not be entitled to additional compensation. Upon termination BURNS agrees to surrender all of DISTRICT's property and to quit DISTRICT's premises, if he occupies DISTRICT's premises, in an orderly and peaceful fashion. VI GENERAL TERMS 1. Form of Relationship BURNS shall be an independent contractor and shall not be deemed an en- ployee, partner, joint venturee, or have other relationship with DISTRICT except that of independent contractor. DISTRICT shall not be responsible in any manner for any of BURNS' staff including direction of work, payment of earnings or contribu- tions, nor shall DISTRICT interfere with BURNS' dominion over BURNS' staff. BURNS shall direct the duties, set the work hours of BURNS' staff, set salaries, benefits, vacation schedules, and shall be responsible for all payroll for BURNS' staff in- cluding all deductions and remittances to the proper authority for federal income tax withholding, State of California income tax withholding, California unemployment insurance taxes, California state disability insurance taxes, California workers' campenstion insurance, federal unemployment taxes, if any, federal income contribu- tions acts such as social security, union health and welfare contributions, if any, and checkoff of union dues, if any. 2. Excused Performance Each party to THIS AGREEMENT shall be excused from performance of the services as provided for herein for any occurrence beyond the control of either which shall include, but not necessarily be limited to, earthquake,- nuclear war or other act of public -enemies of_ this State of the United States, by act or either which unreasonably induces the other to cease performance, where the services re- quired of either are made illegal by operation of law, or for any other irresistible superhuman cause as provided for the §1511, California Civil Code. -3- 3. Arbitration In the event of a dispute between the parties, the matter shall be submit- ted- to arbitration in accordance with the American Arbitration Association Rules and the parties shall attempt to agree upon a single arbitrator. in the event that the parties cannot agree upon a single arbitrator, each party sham =-=1°^- an arbitrator and the two (2) selected shall select a third arbitrator who shall hear the matter and any decision arrived at by the arbitrators shall be enforceable in a court of law. Each party shall be responsible for the costs of the arbitrator that party selects and the cost of the third arbitrator, if selected, shall be shared equally between the parties. The party intitially choosing a since arbitrator shall bear the cost of the single arbitrator. 4. Qualifications - _ - BURNS warrants and represents that he has the necessary qualifications and educational degrees, credentials, licenses or other permits or authorizations issued and current by educational institutions or governmental agencies, or that if any of these qualifications, degrees, credentials, licenses and permits necessary have not been obtained, they will be prior to undertaking the services as provided for here- in. BURNS warrants and represents that any employee of BURNS who will provide services in connection with THIS AGREEMENT will have the qualifications and exper- tise and will be competent. to be employed by BURNS and to perform servizos, for DISTRICT. ' 5. Confidentiality - BURNS may from time to tire, in connection with the services being per- foined pursuant to THIS AGREEMENT, be privy to certain confidential facts, figures or other information which is solely and exclusively the property of DISTRICT and if disclosed may do irreparable damage. BURNS warrants and represents that he will not disclose to any one at any time any confidential information obtained in connection with the service performed under THIS AGREEMENT. DISTRICT Board may from time to time designate certain information caning into the hands of BURNS as confidential and when in doubt as to the confidentiality of material, BURNS shall irmediately determine from DISTRICT Board whether or not material is confidential in nature. 6. Property Rights All work done and services performed under THIS AGREEMENT shall be for DISTRICT. All calculations, facts, figures, documents, forms, systems, research and work product which is produced for DISTRICT shall be the property of DISTRICT and BURNS shall claim no proprietary interest of any kind in these materials, it being the intention of THIS AGREEMENT that BURNS provide legal services only for DISTRICT. In this regard, DISTRICT shall have the right to examine books, papers and records of BURNS at his office during normal working hours, said consent to be limited to those books, papers and records relating to the services provided for DISTRICT. 7. Indemnity BURNS hereby agrees to protect, defend and indemnify and hold DISTRICT, its Board, officers, agents and employees harmless- fran any and all claims, expenses and damages arising by reason of injury to third persons pursuant to the performance of THIS AGREEMENT due to the negligence of BURNS or his employees. BURNS may shift this risk to an insurance carrier, however such shift shall not exempt or excuse BURNS from primary responsibility. Indemnity shall include attorneys' fees pursuant to §1717, California Civil Code. 8. Amendments Any amendment to THIS AGREEMENT shall not be valid unless reduced to writing and- executed by both parties and THIS AGREEMENT as written represents the entire agreement between the parties. - - -4- • ,'4 9. Nature of Relationship THIS AGREEMENT is deemed a personal service contract between BURNS and DISTRICT and BURNS shall. not assign all or any part of THIS AGREEMENT to others without first obtaining the consent of DISTRICT in writing. THIS AGREEMENT may be mutually terminated by the parties hereto but only in writing. 10. Applicable Law THIS AGREEMENT shall be administered in accordance with the laws of the State of California. 11. Notices Any notice which is necessary to be given to either of the parties hereto shall be given at "the following addresses in writing and if by mail, postage pre- paid, or in parson: ._ DISTRICT: Costa Mesa Sanitary District 77 Fair Drive Costa Mesa, California 92626 BURNS: Alan R. Burns .c/o Harper" & Burns 453 S. Glassell Street Orange, California 92666. DATED on the day and year first above written. DISTRICT: COSTA MESA SANITARY DISTRICT Signature uated: 9s-tw.•-7, /Z j I i i i By:'/ , • e�dent I - ATTEST: ...avert BURNS: Signature Dated: 30 `17 By: aLl. I.dcri�✓J Alan R. Burns