HomeMy WebLinkAboutS1-City Attorney
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Resolution amending Professional Services
Agreement between the City of San Bernardino and the
law firm of Richards, Watson & Gershon regarding
representation related to cable franchise transfers to
Time Warner Cable.
Dept: CITY ATTORNEY
Date: August 11, 2005
Synopsis of Previous Council Action:
Resolutions 2005-254, 2005-254(a), July 18,2005.
Recommended motion:
Adopt Resolution.
Resolution of the Mayor and Common Council of the City of San Bernardino
amending Professional Services Agreement between Richards, Watson & Gershon
and the City of San Bernardino regarding representation related to cable franchise
transfers to Time Warner Cable.
Contact person: Michael Reiter
Phone:
5355
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: ~. )-tJf1)c;~ J.,qr
Agenda Item No. S -1
~lls/o~
City Attorney's Office
Agenda Item Review Form
Internal Use Only
Council Meeting Date:
Department:
August 15, 2005
City Attorney
Description of Agenda Item: ResolutJOn amending ProfessIOnal Services Agreement between the CIty
of San Bell1ardmo and the I3w fInn of RIchards, Watson & Gershon regardmg representatJOn rdated to cable
franchIse transfers to TIme Wamer Cable.
Any Problems/Issues of particular concern: None.
Deputy CIA Reviewing: (Initials and date): MR 8/11/2005
/
Sr. Assistant CA Reviewing (Initials and date): ./fA j/' // - {/5
Interested Parties/Real Parties in Interest on this Agenda item:
William Rudell, Esq.
Richards, Watson & Gershon
Time Warner Cable
Adelphia Communications
Comcast Communications
Development Services Dep!. ONLY: Names of Developers/Owners:
Location:
Other Significant Information:
.
Sr. Ass!. City Attorney
Approval to Sign:
rs'li.rs('
(Date)
ff'4
(Initials)
STAFF REPORT
Council Meeting Date: AUl!ust 15. 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: August II, 2005
AGENDA ITEM: Resolution of the ;\la)'or and Common Council of the City of San Bernardino
amending Professional Services Agreement between Richards, Watson &
Gershon and the Cit)' of San Bernardino regarding representation related to cable
franchise transfers 10 Time Warner Cable.
On July 18,2005, the Mayor and Common Council approved resolutions to hire Richards,
Watson & Gershon to represent the City in cable franchise transfers to TIme Warner Cable.
In a letter dated August 9, 2005, William B. Rudell of Richards, Watson & Gershon
(RW&G) stated that the firm's Management Committee was concerned about the second sentence
of paragraph 2 of the Professional Services Agreement. The Management Committee was concerned
about the potential Impact on R W & G's continuing representation of mUnicipal clients in the Inland
EmpIre.
The CUITent second sentence of paragraph 2 of the Professional Services Agreement reads:
"R W &G shall not represent any client in any type of claim against the CITY without prior written
approval to do so from the CITY OF SA:-.i BERNARDINO through the City Attorney's Office."
RW&B is a large municipal law firm with many local clients, including the City of Highland.
The firm is concerned that entenng mto the CUITent Agreement with the CIty might impact its other,
existing clients, unless substitute language is mserted into the Professional Services Agreement.
Mr. Rudell. with the approval of the Management Committee of RW&G, suggested the
following solution: Delete the second sentence of paragraph 2 (as shown above) and replace it with
the following 'The City consents to RW&G undertakmg matters for any party whose interest in
that matter may be adverse to the City, provided that such matters are unrelated to the cable
television franchise transfer applications that constitute the subject matter of RW &G's engagement
as special counsel for the City."
Attached hereto is the amended Professional Services Agreement which reflects the change
above.
It is requested by the City Attomey that the following floor motion be adopted amending the
Professional Services Agreement With RW&G:
"That the Mayor and Common Council of the City of San Bernardino approve the amended
Professional Services Agreement between R W &G and the City of San Bernardino regarding
representation related to cable franchise transfers to Time Warner Cable."
.
RESOLUTIOl\ NO.
2 RESOLUTION OF TIlE MAYOR AND CO:\fMON COUNCIL OF THE CITY OF
SAN BERNARDINO AMENDING PROFESSIONAL SERVICES AGREEMEl\T BETWEEN
3 RICHARDS, WATSON & GERSHON AND THE CITY OF SAN BERNARDINO
REGARDING REPRESENTATION RELATED TO CABLE FRANCHISE TRANSFERS TO
4 TIME WARNER CABLE.
5 BE IT RESOL VED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERc'\'ARDINO AS FOLLOWS:
7 SECTION I. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City an amended Professional Services Agreement between Richards,
9 Watson & Gershon and the City of San Bernardino for legal services, a copy of which is attached
10 hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
11 length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
13 further effect if the agreement is not executed by both parties and returned to the office of City
14 Clerk within sixty (60) days following effective date of the resolution.
15 /jl
16 I II
17 1//
18 //1
19 1//
20 //1
21 ;' / /
22 1//
23 1//
24 / / I
25 i /1
l, I
26 / II
, ,
27 / Ii
28 //1
MR:ar [ResolullOD,amcTldmeTll PSC.\vpd)
24
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN RICHARDS, WATSON & GERSHON AND THE
CITY OF SAN BERi'\'ARDlNO TO REPRESENT THE CITY REGARDING FRANCHISE
3 TRANSFERS TO TIME WARNER CABLE.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bemardino at a
meeting thereof,
6 held on the day of
7 COUNCIL MEMBERS
8 ESTRADA
9 LO'JGVILLE
10 MCGIN)/IS
11 DERRY
12 KELLEY
13 JOHNSO:\
14 MCCAMMACK
15
16
17
18
, 2005. by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
CITY CLERK
19
The foregoing ResolutIOn is hereby approved this _ day of
,2005.
20
21
22
JUDITH V ALLES. Mayor
City of San Bemardll10
Approved as to fom1 and
23 legal content:
25 By: i.,....." 7'. /f~~.'VC-
/ / JAMES F. PENMAN
J City Attomey
26
27
28
MRar [ResolulionamendmentPSCv,pd]
,
L
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
PROFESSIONAL SERVICES AGREEMENT
Franchise Transfers From Adelphia and Century- TCI
1. The CITY OF SAN BERt"JARDIJ'\O (hereinafter "CITY") and the la\\ firm of
RICHARDS. WA TSO;'\ & GERSHON (hereinafter "R W &G") are the parties to this Agreement.
2. R W &G will be representing the following entities and persons in this matter:
CITY OF SAN BERNARDINO related to transfer application to Time Warner Cable and its
afJiliates by Adelphia Communications, Comcast Communications and their affiliates. The City
consents to R W &G undertaking matters for any party whose interests in that matter may be adverse
to the City, provided that such matters are unrelated to the cable television franchise transfer
applications that constitute the subject matter ofRW&G's engagement as special counsel for the
City.
11
12
13
14
15
16
17
3. R W &G shall be paid at the hourly rates set forth below:
Attomeys - $225.00 per hour
The amounts expended under this agreement for attorneys fees shall not exceed
$25,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
RW&G may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
of reimbursement for photocopying, telephone charges, and postage.
6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
return), then RW&G shall not be entitled to reimbursement for mileage and parking fees.
7. R W &G shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of this representation. RW&G may, if
it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
MRar [Professional Services Agreement]
1
1 whenever any significant event occurs, and in any event at least qual1erly. Infol111ation sufficient
2 to set reserves, including, without limitation, potential liability exposure and percentage of fault
3 shall be included.
4 9. In the event litigation is initiated, the following duties apply:
5 a) copies of all opinions, pleadings, discovery and motions shall be provided
6 to the City Attorney's Office which may reproduce same and provide
7 copies to other parties or attorneys in this, or other litigation.
8 b) Copies of any correspondence and other documents sent in this matter
9 shall also be provided to the CITY through the City Attorney's Office.
10 c) Any and all settlements or agrcements shall require CITY approval.
11 Request for settlement authority shall be made through the City Attorney's
12 Offiee which shall obtain the necessary CITY approvals.
13 d) final billing shall be accompanied by copies of the a Final A",'Teement,
14 Release and any other final documents.
15 10 Only William B. Rudell of RICHARDS, WATSON & GERSHON orother senior
16 attorney approved by the CITY shall represent the City in front of any agency, tribunal or COUli.
17 11. No client development costs are to be included in billings.
18 12. No continuing education expenses are to be included in billings.
19 13. Either party may terminate this contract at will. R W &G will continue to represent
20 the C1TY on the telms and conditions in this Agreement until the case and file are transferred to
21 another attorney.
22 14. R W &G is an independent contractor as to the CITY.
23 15 R W &G shall maintain the following types of insurance with limits as shown:
24 a) Workers Compensation as required by the laws of the State of
25 California, including Employment Liabilitywith $250,000 limits
26 covering all persons providing service on behalfofRW&G and
27 all risks to such persons under this Agreement. R W &G shall
28
MRar [Professional Services AgrcemenlJ
2
1
require its Workers Compensation carrier to waive all rights of
2
subrogation against the CITY and its officers and employees and
3
any othcrs for whom services are bcing provided under this
4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile
7
coverage for owned, hired and non-owned vehicles. The policy
8
shall have at least a combined single limit of 51,000,000 for
9
bodily injury and property damage.
10
c)
Professional Liability Insurance with limits of at least S 1,000,000
11 per claim. [n lieu of naming the CITY as an additional insured,
12 the policy may be endorsed as follows:
13 "Insurance coverage afforded by this policy shall also apply to
the liability assumed by the Insured under the Agreement with
14 the CITY OF SAN BERNARDD\'O for Icgal defense services,
provided such liability results from an enor, omission or
15 negligent act of the insured, its officers, employees, agents or
subcontractors. All other provisions of this policy are to remain
16 unchanged."
1 7 R W &G shall furnish cel1ificates of insurance and certified copies of all policies
18 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
19 prior to the commencement of perf om lance of services hereunder, which certificates shall provide
20 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
21 City Attorney's Office, and shall maintain such insurance from the time R W &G commences
22 performance of services hereunder until the completion of such services.
23 All policies, with respect to the insurance covcrage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, i fapplicable, shall
25 obtain additional endorsements naming tlie CITY and all parties represented under this Agreement,
26 Iheir employees, agents, volunteers and officers as additional named insured with respect to
27 liabilities arising out of the perfonnance of services hereunder.
28
MR 31 jProfession31 ServIces Agrccml.:'nl]
3
1 All policies required above are to be primary and non-contributing with any
2 Insurance or self-insurance programs carried or administered by the CITY or other parties
20
21
22
3 represented under this Agreement.
4
16.
All communications and billings to the CITY arc to be directed as follows:
5
6
7
DATED:
,2005
8
9
10
11
12
DA TED:
.2005
13
14
15
16
17
18
19
23 Approved as to forn1 and
legal content:
24
JAMES F. PENMAN,
25 City Attorney
26
27
28
By: Q.z~~-->
/j
/'
i/
-::7, /';:'''7~_
.T Of - ----.
MRar [l'rofessional Snvices Agreement]
Citv Attornev's Office
Crry OF SAN BER1\ARDINO
300 North "D" Street
San Bernardino, CA 92418
RICHARDS, WATSON & GERSHON
By: William B. Rudell, Esq.
CITY OF SAN BERl\'ARDINO
By: Judith Valles, Mayor
4