HomeMy WebLinkAbout022019 - Agenda - Special MeetingTRES HERMANOS CONSERVATION AUTHORITY
SPECIAL BOARD OF DIRECTORS MEETING
February 20, 2019
6:00 p.m.
CITY OF INDUSTRY
CITY COUNCIL CHAMBER
15651 E. STAFFORD STREET
CITY OF INDUSTRY, CALIFORNIA
A GENDA
1. CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL
2. PUBLIC COMMENTS: At this time, members of the public may address the
Authority regarding any items within the subject matter jurisdiction of the
Authority provided NO action or discussion may be taken on any item not
appearing on the agenda, except the Authority may BRIEFLY respond to
statements made or questions posed. Comments are limited to five minutes per
speaker.
3. CONSENT CALENDAR:
3.1 Consideration to adopt Resolution THCA No. 2019-02 establishing
Regular Meeting times for the Tres Hermanos Conservation Authority on
the third Wednesday of the month at 6:00 pm at the City of Industry City
Council Chambers located at 15651 Stafford Street in the City of Industry.
Recommended Action: Adopt Resolution THCA No. 2019-02
establishing Regular Meeting times on the third Wednesday of the month
at 6:00 pm at City of Industry City Hall
Copies of staff reports or other written documentation relating to agenda items are on file in the Office of the City
Clerk at Industry City Hall, and are available for public inspection. If requested, the agenda will be made available
in an alternative format to a person with disability as required by Section 202 of the Americans with Disabilities Act
of 1990. If you have questions regarding an agenda item, please contact the Authority Secretary at (626) 333-2211
during regular business hours.
In an effort to comply with the requirements of Title II of the Americans with Disabilities Act of 1990, the Tres
Hermanos Conservation Authority requires that any person in need of any type of special equipment, assistance or
accommodation(s) in order to communicate at a public meeting, must inform the Authority Secretary a minimum
of 72 hours prior to the scheduled meeting.
1383679.1
February 20, 2019 PAGE 2 THCA Agenda
3.2 Agreement for general counsel services and conflict of interest waiver
Recommended Action: Authorize the Chair to approve the service
agreement and conflict of interest waiver.
4. OLD BUSINESS: None.
5. NEW BUSINESS:
5.1 Discussion regarding insurance.
Recommended Action: Discuss and provide direction to Staff.
5.2 Discussion regarding the possibility of creating a Tres Hermanos
Conservation Authority Website.
Recommended Action: Discuss and provide direction to Staff.
6. CLOSED SESSION:
6.1 CONFERENCE WITH LEGAL COUNCIL — EXISTING LITIGATION
Pursuant to Government Code section 54956.9(d)(1).
Case Name: San Gabriel Valley Water and Power, LLC v. City of Chino
Hills; City of Chino Hills City Council; City of Diamond Bar; City of
Diamond City Council; City of Industry; City of Industry City Council;
Successor Agency to the Industry Urban -Development Agency; Board of
Directors of the Successor Agency to the Industry Urban -Development
Agency; Tres Hermanos Conservation Authority.
Case No.: San Bernardino Superior Court Case No.: CIVDS 1904434
7. AUTHORITY DIRECTOR COMMENTS:
8. ADJOURNMENT:
TRES HERMANOS CONSERVATION AUTHORITY AGENDA NO. 3.1
STAFF REPORT
Date: February 20, 2019
To: Board of Directors
From: Troy Helling, Executive Director
Subject: Establishment of Regular Meeting Times
Recommendation:
That the Board of Directors adopt Resolution THCA No. 2019-02 establishing Regular
Meeting times on the third Wednesday of the month at 6:00 pm at City of Industry City
Hall,
Background/Discussion:
Section 3.4 of the Tres Hermanos Conservation Authority Joint Powers Agreement (JPA)
requires that all meetings of the Conservation Authority be called, noticed and conducted
in accordance with the Ralph M. Brown Act or other relevant open meeting laws. Section
3.4 of the JPA also requires that the Board of Directors establish regular meeting times
for the Conservation Authority by resolution. Meetings are to be held at the City Hall of
the Member whose City Manager serves as Executive Director, which is City of Industry.
The attached Resolution establishes the Regular Meeting time as the third Wednesday
of each month at 6:00 pm at City of Industry City Council Chambers located at 15651
Stafford Street, City of Industry as discussed at the February 7, 2019 meeting.
Respectfully submitted,
Daniel Fox
Deputy Executive Director
Reviewed by,
9�
Troy eing
Executive Director
RESOLUTION THCA NO. 2019-02
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TRES
HERMANOS CONSERVATION AUTHORITY ESTABLISHING REGULAR
MEETING TIMES.
WHEREAS, Section 3.4 of the Tres Hermanos Conservation Authority Joint
Powers Agreement (JPA) requires that all meetings of the Conservation Authority be
called, noticed and conducted in accordance with the Ralph M. Brown Act or other open
meeting laws;
WHEREAS, Section 3.4 of the JPA also requires the Board of Directors to
establish regular meeting times for the Conservation Authority by resolution; and
WHEREAS, Section 3.4 of the JPA further designates that meetings shall be held
at the city hall of the Member whose City Manager is serving as Executive Director, which
is currently the City of Industry.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the
Conservation Authority as follows:
Section 1. Regular Meetings of the Tres Hermanos Conservation Authority shall
be held on the third Wednesday of the month at 6:00 p.m. in the City of Industry Council
Chambers located at 15651 E. Stafford Street, City of Industry, CA 91744.
Section 2. This Resolution shall take effect immediately upon its passage and
adoption.
PASSED, APPROVED, AND ADOPTED this 20th day of February, 2019.
Cory C. Moss
Chair, Board of Directors
Tres Hermanos Conservation Authority
1
Resolution THCA No. 2019-02
ATTEST:
I, Julie Gutierrez -Robles, Secretary of the Tres Hermanos Conservation Authority,
do hereby certify that the foregoing Resolution was duly and regularly passed, approved
and adopted by the Board of Directors of the Tres Hermanos Conservation Authority, at
its special meeting held on the 20th day of February 2019, by the following Roll Call vote:
AYES: BOARD MEMBERS:
NOES: BOARD MEMBERS:
ABSENT: BOARD MEMBERS:
ABSTAIN: BOARD MEMBERS:
2
Julie Gutierrez -Robles
Secretary
Tres Hermanos Conservation Authority
TRES HERMANOS CONSERVATION AUTHORITY AGENDA NO. 3.2
STAFF REPORT
Date: February 20, 2019
To: Board of Directors
From: Troy Helling, Executive Director
Subject: Agreement for General Counsel Services and Conflict of Interest Waiver
Recommendation:
That the Board of Directors approve the general counsel services and conflict of interest
waiver for Woodruff, Spradlin & Smart.
Background/Discussion:
Section 3.9 of the Amended and Restated Tres Hermanos Conservation Joint Powers
Agreement (the "JPA"), the Diamond Bar City Attorney is to serve as the Tres Hermanos
Conservation Authority initial general counsel; provided, however, that the Board of
Directors is to appoint a general counsel within six months of the JPA Effective Date,
who is not providing any legal services to any of the Authority Members.
Respectfully submitted,
( - L) -k - --- -
Daniel Fox ,
Deputy Executive Director
Reviewed by,
Troy Helling
Executive Director
AGREEMENT FOR GENERAL COUNSEL SERVICES
THIS AGREEMENT (the "Agreement") is made and entered into as of this day of
February, 2019, by and between the TRES HERMANOS CONSERVATION AUTHORITY, a
California joint powers authority ("Authority"), and the law firm of WOODRUFF, SPRADLIN &
SMART, a Professional Corporation (hereinafter "WS&S").
RECITALS
A. Pursuant to Section 3.9 of the Amended and Restated Tres Hermanos Conservation Joint
Powers Agreement (the "JPA"), the Diamond Bar City Attorney is to serve as the Tres
Hermanos Conservation Authority ("Authority") initial general counsel; provided, however, that
the Board of Directors ("Board") is to appoint a general counsel within six months of the JPA
Effective Date, who is not providing any legal services to any of the Authority Members.
B. Section 3.9 of the JPA further provides that the costs of such general counsel services shall
be considered Maintenance Costs. Extraordinary legal services, as defined in the JPA, such as
prosecuting on behalf of, or defending the Authority shall be considered Extraordinary Costs.
C. The Board and WS&S desire to enter into this Agreement wherein WS&S shall provide
such legal services as are necessary for the proper function of the office of the General Counsel
for the Authority.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used herein shall have the same meaning as provided in
the JPA, unless otherwise defined herein.
2. Retention of WS&S. Authority hereby retains and employs WS&S to provide all legal
services incident to general counsel representation for the Board and the Authority. In this
regard, David DeBerry is designated as the General Counsel for the Authority. Mr. DeBerry is
authorized to assign other attorneys of WS&S to provide the Authority's legal services as is
necessary and proper.
3. Scope of Duties. Authority retains and employs WS&S to provide legal services
required in connection with Authority's operation as a joint powers authority pursuant to
Government Code § 6250 et seq. WS&S shall provide those legal services reasonably required
to advise and represent Authority and shall take reasonable steps to keep Authority informed of
the progress of the representation and to respond in a timely manner to the inquiries of
Authority regarding pending matters. The Board may, in its discretion, assign legal services to
attorneys other than the WS&S which are reimbursed as Extraordinary Costs. It is understood
that the legal services to be performed and the functions of the General Counsel shall include,
but are not limited to, the following:
2.1 Represent and advised the Board and all Authority officers in matters of law
pertaining to their office. Give advice or opinion on the legality of all matters under
consideration by the Board or by any of the boards and commissions or officers of the
Authority;
2.2 Attend all meetings of the Board and attend all other meetings of Authority
boards, commissions, and committees when so requested by the Board or the Executive
Director;
2.3 Assist in the preparation and review of ordinances, resolutions, contracts, deeds,
leases and other legal documents;
2.4 As requested, approve the form of contracts made by and between the Authority
and bonds given to the Authority, endorsing same;
2.5 Upon request, prepare legal opinions for as are necessary for the proper function
of the Authority;
2.6 Oversee services provided by other legal specialists retained by the Authority
for specialized legal issues, as deemed appropriate by the Executive Director;
2.7 Coordinate legal activities with outside agencies, as applicable;
2.8 Represent the Authority in civil litigation; and
2.9 Perform such other legal duties as may be required by the Board in the
performance of the functions list in subparagraphs A -H.
3. Independent Contractor. WS&S and any attorneys or other persons employed by
WS&S, shall at all times be considered an independent contractor and not an employee of the
Authority and not entitled to any benefits of the Authority's employees. Except to the extent
provided herein, the Authority, its officers, agents and employees, if any, shall not have any
control over the conduct of WS&S.
4. Fees, Costs and Expenses.
4.1 Authority agrees to pay WS&S at the rates set forth in Exhibit "A," which is
attached hereto and is incorporated herein by reference.
4.2 Authority agrees to pay out-of-pocket costs and expenses associated with WS&S'
work pursuant to Exhibit "A".
5. Statements/Task-Billing. WS&S shall prepare and present to Authority detailed
monthly statements for professional and other services rendered to Authority for the month
preceding the statement, indicating each task performed by WS&S. Authority shall pay the
statements within 30 days of receipt of the same. WS&S shall update Authority, upon request,
regarding the status of WS&S' billings.
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Insurance and Indemnification.
6.1. WS&S shall carry Professional Liability/Errors and Omissions and Automotive
Liability insurances in an amount not less than $2 million per occurrence and $4 million in
aggregate. The Authority shall be named as a certificate holder and an additional insured on the
Automotive Liability policy. All insurance coverage shall be provided by an insurance company
with a rating of A-, VII or greater in the latest edition of Best's Insurance Guide and authorized
to do business in the State of California. Such policies shall not be canceled or materially
changed absent 30 days' prior written notice to the Authority. With respect to Professional
Liability/Errors and Omissions insurance, WS&S agrees to maintain such insurance for at least
three years after termination of this Agreement as long as such insurance is reasonably available
on the market.
6.2. WS&S agrees to indemnify, defend and hold harmless, the Authority, its Board,
officers, agents and employees from and against and claim, demands, damages, injury or
judgment which arises out the negligent performance or willful misconduct of WS&S in
performing under this Agreement.
7. Term and Termination. The term of this Agreement shall commence on February
7, 2019 (date of Authority's first Board Meeting), until terminated by either party. WS&S shall
serve under the terms of this Agreement at the pleasure of Authority, and by a majority vote of
the Board, Authority hereby reserves the right to terminate this Agreement, with or without
cause, upon 10 days written notice to WS&S for any reason or to require substitute attorney
personnel. When WS&S' services are terminated, all unpaid charges shall be due and payable to
WS&S for work actually performed up to the time of termination and for any other work it
completes at the direction of the Authority. WS&S may terminate this Agreement with or
without cause upon 90 days written notice to the Authority.
S. Notice. Any notices required by this Agreement shall be given by personal
service or by delivery of such notice by first-class mail, postage prepaid. Such notices shall be
addressed to each party at the address listed below. Either party may change the information in
such notice upon written notice as provided herein.
Authority:
Tres Hermanos Conservation Authority
15625 East Stafford Street
City of Industry, CA 91744
WS&S:
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attn: Troy Helling, Executive Director Attn: David A. DeBerry, Director
3
9. Non-Discrimination. WS&S shall not discriminate against any employee or applicant
for employment because of race, religion, color, sex, sexual orientation, disability or national
origin.
10. Conflicts of Interest. WS&S represents that it presently has no interest and shall not
acquire any interest, direct or indirect, in any legal representation which is in conflict with the
legal services to be provided the Authority under this Agreement; provided that WS&S
represents the City of Diamond Bar as its City Attorney and pursuant to Section 3.9 of the JPA,
the Board and Members have agreed that WS&S' representation of the Authority and the City of
Diamond Bar shall not, in and of itself, constitute a conflict of interest. Attached hereto as
Exhibit `B" is a waiver of conflict of interest and in executing this Agreement, the Board
approves the waiver of conflicts noted therein. However, if any actual conflict of interest arise
as between the Authority and the City of Diamond Bar not included in such waiver, WS&S shall
either obtain additional written waivers from both entities or recuse itself from the matter giving
rise to the conflict of interest. WS&S represents that no Authority employee or official other
than the members of WS&S has a material financial interest in WS&S. During the term of this
Agreement and/or as a result of being awarded this contract, WS&S shall not offer, encourage
or accept any financial interest in WS&S's business from any Authority employee or official.
11. Files. All legal files of WS&S pertaining to the Authority shall be and remain the
property of Authority. WS&S shall control the physical location of such legal files in a secure
and accessible location during the term of this Agreement and be entitled to retain copies of
such files, at WS&S' expense, upon termination of this Agreement.
12. Modifications to the Agreement. Unless otherwise provided for in this Agreement,
modifications relating to the nature, extent or duration of WS&S' professional services to be
rendered hereunder shall require the written approval of the parties. Any such written approval
shall be deemed to be a supplement to this Agreement and shall specify any changes in the Scope
of Services and the agreed-upon billing rate to be charged by WS&S and paid by the Authority.
13. Assignment and Delegation. This Agreement contemplates the personal professional
services of WS&S and it shall not be assigned or delegated without the prior written consent of
the Authority. WS&S shall supervise delegated work, except where precluded from doing so by
virtue of a conflict of interest and where otherwise agreed to by the parties hereto.
14. Legal Construction.
15.1 This Agreement is made and entered into in the State of California and shall, in
all respects, be interpreted, enforced and governed under the laws of the State of California.
15.2 This Agreement shall be construed without regard to the identity of the persons
who drafted its various provisions. Each and every provision of this Agreement shall be
construed as though each of the parties participated equally in the drafting of same, and any rule
of construction that a document is to be construed against the drafting party shall not be
applicable to this Agreement.
4
15.3 The article and section, captions and headings herein have been inserted for
convenience only, and shall not be considered or referred to in resolving questions of
interpretation or construction.
15.4 Whenever in this Agreement the context may so require, the masculine gender shall
be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include
the plural.
16. Entire Aureement.
This Agreement contains the entire agreement and understanding of the parties with respect
to the subject matter hereof, and contains all covenants and agreements between the parties with
respect to such matter,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
indicated in the preamble to this Agreement and represent that they are authorized to bind their
respective parties.
ATTEST: TRES HERMANOS CONSERVATION AUTHORITY
By
Secretary, Board of Directors
Chairman, Board of Directors
WOODRUFF, SPRADLIN & SMART
Lois M. Bobak
President/Managing Director
5
EXHIBIT "A"
WOODRUFF, SPRADLIN & SMART
Rates and Billing Practices
Hourly Rates for Legal Personnel
All Attorneys $222
Extraordinary legal services: $271
Paralegals $155
Billing Increment
• Attorneys shall bill in increments of one-tenth of an hour (six minutes).
• Attorneys shall not bill for secretarial time, including time spent for faxing, mailing, arranging for
messengers, or calendaring.
Costs and Expenses
Extraordinary photocopying' $0.25 per page or actual cost if sent out
Parking at Courthouse Actual cost
Filing fees, messenger fees Actual cost
Jury fees, & expert fees Actual cost
Phone No cost
Exhibit "A"
1384942.1
1384942.1
OATH OF OFFICE
California Constitution Article 20, Section 3
I, DAVID A. DeBERRY, do solemnly swear that I will support and defend the Constitution of the
United States and the Constitution of the State of California against all enemies, foreign and domestic; that I
will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of
California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I
will well and faithfully discharge the duties upon which I am about to enter.
David A. DeBerry
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
Subscribed and sworn to (or affirmed) before me on this day of , 2010, by
proved to me on the basis of satisfactory evidence to be the person(s) who
appeared before me.
(seal)
Signature
Oath of Office
1384942.1
1384942.1
DAVID A. DEBERRY
DIRECT DIAL: (714) 415-1088
DIRECT FAX: (714) 415-1188
E-MAIL: DDEBERRYQWSS-LAW.COM
February 15, 2019
VIA E-MAIL AND FIRST CLASS MAIL
Cory C. Moss
Chair, Board of Directors
Tres Hermanos Conservation Authority
15651 E. Stafford Street
Industry, CA 91744
Carol Herrera
Mayor
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
Re: Waiver of Conflict of Interest
Dear Chair Moss and Mayor Herrera:
The purpose of this letter is to request the informed written consent of the Board of
Directors ("Board") of the Tres Hermanos Conservation Authority ("Authority") and the City
Council of the City of Diamond Bar ("City") that Woodruff, Spradlin & Smart ("WS&S") may
represent the Authority as General Counsel while at the same time representing the City of
Diamond Bar ("City") as City Attorney. Pursuant to Section 3.9 of the joint powers agreement
("JPA") creating the Authority, I was to serve as the Authority's initial general counsel, until the
Board appointed a replacement, which pursuant to the JPA is to occur within six months of the
JPA's effective date.
While the Authority's and the City's interests will generally be aligned, there is the
potential that these client relationships could implicate Rule 3-310 of the California Rules of
Professional Conduct with respect to conflicts of interest. Thus, in the interest of full disclosure,
I respectfully ask for the Authority's informed written waiver of any actual or potential conflict of
interest arising from WS&S' representation of the City as City Attorney while representing the
Authority as General Counsel to the extent provided herein.
The pertinent subsections of Rule 3-310 of the Rules of Professional Conduct of the State
Bar of California state:
(C) A member [i.e., the lawyer] shall not, without the informed written consent
of each client:
555 ANTON BOULEVARD, SUITE 1200 ■ COSTA MESA, CA 92626-7670 ■ (714) 558-7000 ■ FAX (714) 835-7787
W W W. WSS-LAW.COM
1386397.1
February 15, 2019
Page 2
(1) Accept representation of more than one client in a matter in which
the interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter
in which the interests of the clients actually conflict; or
(3) Represent a client in a matter and at the same time in a separate
matter accept as a client a person or entity whose interest in the first matter is
adverse to the client in the first matter....
(E) A member [i.e., the lawyer] shall not, without the informed written consent
of the client or former client, accept employment adverse to the client or former
client where, by reason of the representation of the client or former client, the
member has obtained confidential information material to the employment.
As a general rule, a lawyer owes a client a duty of loyalty which, among other things,
requires a lawyer to exercise judgment that is not influenced by factors other than the client's best
interests. Thus, one reason for the rule requiring informed written consent of both clients is that,
where the attorneys represent one client in a matter adverse to another client, "the first client [may]
doubt his attorney's loyalty when the latter accepts unrelated but antagonistic employment."
(Jeffry v. Pounds (1977) 67 Ca1.App,.3d 6, 10.) The courts and the California State Bar are
concerned that the attorney might favor one client over the other in the work being done in the
conflicting matter, or at least that the attorney might give less than undivided loyalty to the client
in the matter because of other existing or good relations with the other party.
The extent of this waiver does not apply to any situation in which the Authority and the
City are actually adverse to each other in litigation or any administrative proceeding or not
otherwise covered by this waiver. This waiver does, however, apply to the recently filed litigation
against the City, the Authority and others, by San Gabriel Water & Power, LLC, San Bernardino
Superior Court Case No. CIVDS 1904434. The interests of the City and the Authority are, at the
time, aligned.
Generally, cities enter into to joint powers agreements because they have a common
interest in exercising one of their enumerated functions and as such, the interests of the member
cities and the joint powers authority created are in alignment and not adverse. In the course of
providing advice to the Authority, I may provide advice in a way that the City or Authority does
not view as favorable to one or the other. However, the advice I do provide will be based upon
the law and the provisions of the JPA and the Board and/or its Members are always free to seek
another legal opinion, if it disagrees with that advice.
In signing this waiver, Woodruff, Spradlin & Smart would be permitted to represent the
Authority as general counsel and City as City Attorney. The Authority and City will be required
1386397.1
February 15, 2019
Page 3
to execute a waiver in the form herein provided. If providing the consent/wavier is acceptable,
respectively, to Authority and City, please sign and date in the spaces below.
Sincerely,
WOODRUFF, SPRADLIN & SMART
A Professional Corporation
DAVID A. DEBERRY
1386397.1
February 15, 2019
Page 4
INFORMED CONSENT REGARDING REPRESENTATION
AND WAIVER OF CONFLICT OF INTEREST
On behalf of the Authority and the City, respectively, I have read and understand the
contents of this letter and hereby consent to, and hereby knowingly and expressly waive any
conflict of interest arising from, the law firm of Woodruff, Spradlin & Smart providing legal
representation to Authority and the City.
AUTHORITY
By
Dated:
Cory C. Moss, Chair
Board of Directors
ATTEST
Julie Gutierrez -Robles
Secretary, Board of Directors
CITY OF DIAMOND BAR
By: _
Dated:
Carol Herrera, Mayor
City of Diamond Bar
ATTEST
Tommye Cribbins, City Clerk
City of Diamond Bar
1386397.1