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STAFF REPORT
Council Meeting Date: Seotember 18. 2006
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: September 13, 2005
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Richards, Watson & Gershon to represent the City of San Bernardino
regarding cable/telecommunication franchises and adoption of a new
cable/telecommunication ordinance.
The City of San Bernardino is currently developing and drafting a new Cable and
Telecommunications Franchise Code Section to replace our current outdated code. The new
franchise codes will address emerging technologies, including new providers, types of technology,
and emerging laws.
The current state oflaw with respect to cable franchises and telecommunications is in flux
and subject to multiple levels of regulation at local, state, and federal levels. The law is extremely
complex, requiring expert advice to fully comprehend the effect of certain provisions. Cable and
telecommunications are regulated at the local, state, and federal levels under various arcane and
esoteric statutory schemes and require expert advice to realize the full potential oflocal franchise
laws and franchise agreements.
Richards, Watson & Gershon is a law firm specializing in public agency and municipal law
for over 50 years. The firm has previously represented and advised the City of San Bernardino in
relation to cable franchise transfers and has multiple well-respected individuals with knowledge of
cable/telecommunication franchises in their employ.
The Mayor and Common Council have approved retention of the law firm of Richards,
Watson & Greshon to represent the City of San Bernardino regarding cable/telecommunication
franchises and adoption of a new cable/telecommunication ordinance.
Attached hereto is the Professional Services Agreement which reflects such approval,
including a ceiling of $25,000 on attorney fees and the requirement of regular status reports.
It is requested by the City Attorney that the following floor motion be adopted authorizing
the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
"That the Mayor ofthe City of San Bernardino and Common Council authorize and direct
the Mayor of the City of San Bernardino to execute on behalf of the City of San Bernardino the
Professional Services Agreement with the law firm of Richards, Watson & Gershon to represent the
City of San Bernardino regarding cable franchises."
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CCOfV
RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING THE HIRING OF RICHARDS, WATSON & GERSHON
3 TO REPRESENT THE CITY REGARDING CABLE/TELECOMMUNICATION
FRANCHISES AND ADOPTION OF A NEW CABLE/TELECOMMUNICATION
4 ORDINANCE.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between Richards, Watson
9 & Gershon and the City of San Bernardino for legal services, a copy of which is attached hereto
10 marked Exhibit "A" and incorporated herein by reference as though fully set forth at length.
II SECTION 2. The authorization granted hereunder shall expire and be void and of no
12 further effect if the agreement is not executed by both parties and returned to the Office ofthe City
13 Clerk within sixty (60) days following the effective date of the resolution.
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MR:ar [Franchlse Transfers.Resolution2] I
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO APPROVING THE mRING OF RICHARDS, WATSON & GERSHON TO
REPRESENT THE CITY REGARDING CABLE/TELECOMMUNICA TION FRANCmSES
3 AND ADOPTION OF A NEW CABLE/TELECOMMUNICATION ORDINANCE.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
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thereof, held on the day of
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COUNCIL MEMBERS: AYES NAYS
8
ESTRADA
9
BAXTER
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(VACANT)
II
DERRY
12
KELLEY
13
JOHNSON
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MCCAMMACK
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meeting
, 2006, by the following vote, to wit:
ABSTAIN ABSENT
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Rachel G. Clark, City Clerk
The foregoing Resolution is hereby approved this
day of
,2006.
PATRICK J. MORRIS, Mayor
City of San Bernardino
23 Approved as to form:
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MR:ar [Franchise Transfers.Resolution2} 2
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I PROFESSIONAL SERVICES AGREEMENT
2 I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
3 Richards, Watson & Gershon (hereinafter "RWG") are the parties to this Agreement.
4 2. RWG will be representing the CITY related to cable/telecommunication franchises
5 and adoption of a new cable/telecommunication ordinance. The CITY consents to R WG undertaking
6 matters for any party whose interests in that matter may be adverse to the CITY, provided that such
7 matters are unrelated to cable/telecommunication franchises and adoption of a
8 cable/telecommunication ordinance.
9 3. RWG shall be paid at the hourly rates set forth below:
10 Attorneys - $225 per hour.
II The amounts expended under this agreement for attorneys fees shall not exceed
12 $25,000 without further approval of the Mayor and Common Council.
13 4. Bills shall be submitted at least on a monthly basis and no later than the 5'h day of
14 each succeeding month.
15 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
16 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
17 RWG may include a single charge in an amount not to exceed four percent (4%) offees in lieu of
18 reimbursement for photocopying, telephone charges, and postage.
19 6. Ifattorney's fees are charged "portal to portal" (e.g., from office to court and return),
20 then RWG shall not be entitled to reimbursement for mileage and parking fees.
21 7. RWG shall obtain approval from the CITY to retain expert consultants and other
22 professionals (not including court reporters) for purposes of representing the City pursuant to this
23 agreement. RWG may, if it chooses, pay the fees and charges of such consultants and seek
24 reimbursement from CITY on its periodic statement, or it may forward the consultant's bill to CITY
25 with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without
26 prior approval of the CITY'S Finance Department.
27 8. Status reports will be submitted to CITY through the City Attorney's Office whenever
28 any significant event occurs, and in any event at least quarterly.
F:\LUCZAKIFORMS\CITY COUNCILIRWG PSAIProfessional Services AgreemenrRWG (Cable Franchise).wpd
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9.
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Copies of all opinions shall be provided to the City Attorney's Office.
Only William B. Rudell of RICHARDS, WATSON & GERSHON or other senior
3 attorney approved by the CITY shall perform the legal work set forth in this agreement.
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II.
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No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
Either RWG or the CITY may terminate this contract at will. RWG will continue to
7 represent the CITY on the terms and conditions in this Agreement until the file is transferred to
8 another attorney.
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14.
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RWG is an independent contractor as to the CITY.
RWG shall maintain the following types of insurance with limits as shown:
a)
Workers Compensation as required by the laws of the State of
12 California, including Employment Liability with $250,000 limits covering all persons
13 providing service on behalf of RWG and all risks to such persons under this
14 Agreement. R WG shall require its Workers Compensation carrier to waive all rights
15 of subrogation against the CITY and its officers and employees and any others for
16 whom services are being provided under this Agreement.
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b)
Comprehensive General and Automobile Liability Insurance coverage
18 to include contractual coverage and automobile coverage for owned, hired and non-
19 owned vehicles. The policy shall have at least a combined single limit of$I,OOO,OOO
20 for bodily injury and property damage.
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c)
Professional Liability Insurance with limits of at least $1,000,000 per
claim. In lieu of naming the CITY as an additional insured, the policy may be
endorsed as follows:
"Insurance coverage afforded by this policy shall also apply to the liability
assumed by the Insured under the Agreement with the CITY OF SAN
BERNARDINO for legal defense services, provided such liability results from an
error, omission or negligent act of the insured, its officers, employees, agents or
subcontractors. All other provisions of this policy are to remain unchanged."
RWG shall furnish certificates of insurance and certified copies of all policies and
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
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I to the commencement of performance of services hereunder, which certificates shall provide that
2 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
3 Attorney's Office, and shall maintain such insurance from the time RWG commences performance
4 of services hereunder until the completion of such services.
5 All policies, with respect to the insurance coverage above required, except for the
6 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
7 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
8 their employees, agents, volunteers and officers as additional named insured with respect to
9 liabilities arising out of the performance of services hereunder.
10 All policies required above are to be primary and non-contributing with any insurance
II or self-insurance programs carried or administered by the CITY or other parties represented under
12 this Agreement.
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All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
DATED:
,2006
RICHARDS, WATSON & GERSHON
By: William B. Rudell or Kayser O. Sume
DATED:
,2006
CITY OF SAN BERNARDINO
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Approved as to form:
By: Patrick J. Morris, Mayor
JAMES F. PENMAN,
City Attorney
By:~7.~
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