HomeMy WebLinkAboutAgenda Packet - Legislative & Public Outreach Committee - 06/17/2010East Valley
Water District
LEGISLATIVE COMMITTEE
Date: June 17, 2010
Time: 4:00 p.m.
Place: 3654 E. Highland Ave, Suite 12
Highland, CA 92346
AGENDA
CALL TO ORDER
PLEDGE OF ALLEGIANCE
1. Public Comments.
2. Review and discussion regarding State and Federal Legislation.
3. Discussion regarding Legislative tracking.
4. Discussion regarding lobbying trips to Washington and Sacramento
ADJOURN
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Pursuant to Government Code Section 54954.2(a), any request for a disability- related
modification or accommodation, including auxiliary aids or services, that is sought in order to
participate in the above - agendized public meeting should be directed to the District's
Administrative Manager at (909) 885 -4900 at least 72 hours prior to said meeting.
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AMENDED IN SENATE MAY 12, 2010
AMENDED IN SENATE APRIL 5, 2010
SENATE BILL No. 972
Introduced by Senator Wolk
February 8, 2010
An act to antend Seetion 2778 add Section 2782.85 to; the
Civil Code, relating to indemnity.
LEGISLATIVE COUNSEL'S DIGEST
SB 972, as amended, Wolk. Indemnity: design
Existing law provides, for all contracts, and amendments to contracts,
entered into on or after January 1, 2007, with a public agency for design
professional services, all provisions, clauses, covenants, and agreements
contained in, collateral to, or affecting these contracts, that purport to
indemnify, including the cost to defend, the public agency by a design
professional against liability for claims against the public agency, are
unenforceable, except for claims that arise out of, pertain to, or relate
to the negligence, recklessness, or willful misconduct of the design
professional.
This bill would provide, for all contracts, and amendments to
contracts, entered into on or after January 1, 2011, with a public agency,
as defined, for design professional services, all provisions, clauses,
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SB 972
covenants, and agreements contained in, collateral to, or affecting these
contracts or amendments to contracts that purport to require an
immediate defense under an indemnity agreement are unenforceable;
exeept- prevtded. The bill would provide that a design professional
is not required to defend or indemnify the indemnified party unless and
until the indemnified party provides a written tender of the claim to the
design professional, at which point the design professional may choose
to either defend the claim with counsel of its choosing or pay a
reasonable allocated share of the indemnified party's defense fees and
costs. The bill would allow the indemnified party to recover damages
from the design professional if it fails to timely and adequately perform
these duties. The bill mould provide that a design rofessional shall not
local Vote: majority, Appropriation: no. Fiscal committee: no,
program:
The people ofthe State of Cahlbrnia do enact asjbllow�.-
I SECTIOP4 1. SeetioH 2778 of the Civil Code is amended to
3 2778. in the interpretation of a contract of . ndernnitr, the
5 appears!
6 (n) Upon an indemnity agiinst liabil .. y, eXpIressly, or in Other
9 (b) Upon an itidemnity against claims, dernands, damages, o
10 costs, expressly, or in other equivalent
I I indenittified is net entitled to recover without payment ther
12 (e) An indemnity against claims, dentands, orliabIlity, expressly,
13 or in other equivalent terms, embraces the costs oftlefense ag&inM
14 the elairns, demands, or liability ineurred in good '.ift and in the
15 exercise of a reasonable disef etion.
• bound,
17 indemnified, to defend actions or proceedings brought-a�
18 latter in respect to the triatters embraced by the indemniry, but the
1 ot she chooses to do so. This subdivision does not y:
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ordinary care he of she failed to establi4h in the aetion.
SEC—. 2.
SECTION 1. Section 2782.85 is added to the Civil Code, to
read:
2782.85. (a) For- Notwithstanding subdivision (d) of Section
2778, .for all contracts, and amendments to contracts, entered into
on or after January 1, 2011, with o public agency for design
professional services, all provisions, clauses, covenants, and
agreements contained in, collateral to, or affecting these contracts
or amendments to contracts that purport to require an immediate
defense under an indemnity agreement are unenforceable, except
for the defense obligations set f��h as providedfor- in subdivisions
(c), (d), and (e). This section shall not be waived or modified by
contractual agreement, act, or omission of the parties. Contractual
provisions, clauses, covenants, or agreements not expressly
prohibited by this section arc reserved to the agreement of the
parties.
(b) For purposes of this section, the following definitions apply:
(1) "Design professional' includes all of the following:
(A) An individual licensed as an architect pursuant to Chapter
3 (commencing with Section 5500) of Division 3 of the Business
and Professions Code, and a business entity offering architectural
services in accordance with that chapter.
(B) An individual licensed as a landscape architect pursuant to
Chapter 3.5 (commencing with Section 5615) of Division 3 of the
Business and Professions Code, and a business entity offering
landscape architectural services in accordance with that chapter.
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L
ordinary care he of she failed to establi4h in the aetion.
SEC—. 2.
SECTION 1. Section 2782.85 is added to the Civil Code, to
read:
2782.85. (a) For- Notwithstanding subdivision (d) of Section
2778, .for all contracts, and amendments to contracts, entered into
on or after January 1, 2011, with o public agency for design
professional services, all provisions, clauses, covenants, and
agreements contained in, collateral to, or affecting these contracts
or amendments to contracts that purport to require an immediate
defense under an indemnity agreement are unenforceable, except
for the defense obligations set f��h as providedfor- in subdivisions
(c), (d), and (e). This section shall not be waived or modified by
contractual agreement, act, or omission of the parties. Contractual
provisions, clauses, covenants, or agreements not expressly
prohibited by this section arc reserved to the agreement of the
parties.
(b) For purposes of this section, the following definitions apply:
(1) "Design professional' includes all of the following:
(A) An individual licensed as an architect pursuant to Chapter
3 (commencing with Section 5500) of Division 3 of the Business
and Professions Code, and a business entity offering architectural
services in accordance with that chapter.
(B) An individual licensed as a landscape architect pursuant to
Chapter 3.5 (commencing with Section 5615) of Division 3 of the
Business and Professions Code, and a business entity offering
landscape architectural services in accordance with that chapter.
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SB 972
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(C) An individual registered as a professional engineer pursuant
to Chapter 7 (commencing with Section 6700) of Division 3 of
the Business and Professions Code, and a business entity offering
professional engineering services in accordance with that chapter.
(D) An individual licensed as a professional land surveyor
pursuant to Chapter 15 (commencing with Section 8700) of
Division 3 of the Business and Professions Code, and a business
entity offering professional land surveying services in accordance
with that chapter.
(2) "Design professional services" includes all contractual
services offered or performed by a design professional.
(3) "Public, agency" includes any county, city, city and county,
district, school district, public authority, municipal corporation,
or other political subdivision, joint powers authority, or public
corporation in the state. Public agency does not include the State
of California.
(c) A design professional shall owe no defense or indemnity
obligation to the indemnified party for a claim of liability unless
and until the indemnified party provides a written tender of the
claim or a portion of the claim to the design professional. That
written tender shall include all of the information provided to the
indemnified party by a claimant or claimants relating to claims
caused by the design professional's services, and shall have the
same force and effect as a notice of commencement of a legal
proceeding. If an indemnified party tenders a claim subject to this
section to a design professional in the manner specified in this
subdivision, the design professional shall elect to perform either
of the following, the performance of which shall be deemed to
satisfy the design professional's defense obligation to the
indemnified party:
(1) Defend the claim with counsel chosen by the design
professional. If a design professional elects to defend the claim
pursuant to this paragraph, the design professional shall maintain
control of the defense for any claim or portion of the claim to
which the defense obligation applies. The design professional shall
provide written notice of its election to the indemnified party within
90 days after receipt of the written tender. The defense by the
design professional shall be a complete defense of the indemnified
party of all claims or portions of claims alleged to have been caused
by the design professional.
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(2) Pay, within 30 days after -its receipt of an invoice from the
indemnified party, no more than a reasonable allocated share of
the indemnified party's defense fees and costs, on an ongoing basis
during the pendency of the claim, subject to reallocation consistent
with this section, and including any amounts reallocated upon final
resolution of the claim, either by settlement or judgment. The
indemnified party shall allocate a share to itself to the extent a
claim or claims are alleged to be caused by its work, actions, or
omissions, and a share to each design professional to the extent a
claim or claims are alleged to have been caused by the design
professional's work, actions, or omissions, and shall allocate a
share to all other parties or entities, whether or not a contractual
party, who the indemnified party believes are potentially liable for
the claim or claims, regardless of whether the indemnified party
tenders the claim to any particular design professional, and
regardless of whether that professional is participating in the
defense. Any amounts not collected from any particular design
professional wry shall not be collected from any other design
professional.
(d) Notwithstanding any other- peavisiart -of law, if a design
professional fails to timely and adequately perform its obligations
under paragraph (1) or (2) of subdivision (c), the indemnified party
shall have the right to pursue a claim against the design
professional for any resulting damages, as well as for interest on
defense and indemnity costs, from the date incurred, at the rate set
forth in subdivision (g) of Section 3260, and for the indemnified
party's reasonable attorney's fees incurred to recover these
amounts. The indemnified party shall bear the burden of proof to
establish both the design professional's failure to meet the
requirements of paragraph (1) or (2) of subdivision (c) and any
resulting damages.
(e) A design professional shall not be requiI --d-to-pay-tlefettse
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SB 972 —6—
3 { feallfw-Hte A__ and any resul4nS-dftmftge-s--
4 (4)
5 (e) A public agency, private entity, or design professional shall
6 have the right to seek equitable indemnity for any claim governed
7 by this section.
8 (0
9 (/)Nothing in this section shall prohibit the parties from
10 mutually agreeing to reasonable contractual provisions for damages
I I if any party fails to elect for or perform its obligations as stated in
12 this section.
13 (it)
14 (g) Nothing in this section limits, restricts, or prohibits the right
15 of the indemnified party or the design professional to seek equitable
16 indemnification against any entity other than the indemnified party
17 or design professional.
18 (t)
19 (h) This section shall not apply to claims -whieh that are the
20 subject of °�io;o„ subdivisions (c) to (h), inclusive, of Section
21 2782.
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SB 972 Senate Bill - Bill Analysis
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