No preview available
HomeMy WebLinkAbout2012-024 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2012-24 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELPMENT AGENCY, TO ADVISE THE CITY ATTORNEY'S OFFICE ON LEGAL ISSUES INVOL VING SUCCESSOR AGENCY MATTERS RESULTING FROM THE IMPLEMENTATION OF AB Xl 26 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELOPMENT AGENCY, AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City, acting as the successor agency of the San Bernardino Redevelopment Agency (RDA), a Consultant Services Agreement between Lewis Brisbois Bisgaard & Smith, LLP and the City of San Bernardino, acting as the successor agency to RDA, to advise the City Attorney's Office on legal issues involving the dissolution of RDA and the City's role as the successor agency of the RDA, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference. SECTION 2. The authorization granted by this Resolution shall expire and be of no further effect if the Agreement is not executed by both parties and returned to the Office of the City Clerk within sixty (60) days following the effective date of this Resolution. III III III III III III III III 2012-24 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 1 BERNARDINO ACTING, AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF A 2 CONSULTANT SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELPMENT AGENCY, TO ADVISE THE CITY ATTORNEY'S OFFICE ON LEGAL ISSUES INVOLVING SUCCESSOR AGENCY MATTERS RESULTING FROM THE IMPLEMENTATION OF AB X126 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino, acting as the successor agency of joint regular . RDA, at a meetmg thereof, held on the 6thday of February ,2012, by the following vote, to wit: Council Members Ayes Nays Abstain Absent MARQUEZ ----1L JENKINS X BRINKER X SHORETT X KELLEY X JOHNSON ----1L McCAMMACK ---1L 19 20 a~ /;;;. ~ Rachel G. Clark, City Clerk 21 22 The foregoing resolution is hereby approved this 9~ 23 24 25 26 27 28 day o~ 2012 Approved as to form: JAMES F. PENMAN, City Attorney 2012-24 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 THIS AGREEMENT is made and entered into this 6th day of February, 2012 by and between 5 the CITY OF SAN BERNARDINO, acting as the successor agency to the San Bernardino 6 Redevelopment Agency (RDA) and LEWIS BRISBOIS BISGAARD & SMITH LLP 7 ("CONSULTANT"). 8 1. LEWIS BRISBOIS BISGAARD & SMITH LLP will provide legal advice to the City 9 Attorney's Office on legal issues involving the dissolution of the City's Redevelopment Agency 10 (RDA) and the CITY's role as the successor agency of the RDA. LEWIS BRISBOIS BISGAARD II & SMITH LLP shall not represent any client in any type of claim against the CITY without prior 12 written approval to do so from the CITY through the City Attorney's Office. 13 CONSULT ANT shall directly advise the City Attorney andlor his designee and shall inform 14 the City Attorney, andlor his designee, in advance of any and all meetings with other CITY officials, 15 employees, commissions, boards or committees, and shall keep the City Attorney informed 16 concerning issues, decisions, etc. arising or occurring at all such meetings and of any other 17 communications with said CITY officials, employees, commissions, boards or committees. 18 2. LEWIS BRISBOIS BISGAARD & SMITH LLP shall be paid at the hourly rates set 19 forth below: 20 Partners - $200.00 per hour; 21 Sr. Associates - $180.00 per hour; 22 Associates - $150.00 per hour; and 23 Law ClerkslParalegals - $85.00 per hour. 24 The amounts expended under this agreement for attorney fees shall not exceed 25 $25,000, (the "maximum amount") without further approval of the Mayor and Common Council 26 acting as the successor agency to the RDA. CITY agrees to allocate sufficient amounts from tax 27 increment funds as the source of funding for this Agreement and shall allocate an amount equal to 28 III F:\PENMAN\LBBS. ConsultSvcAg. wpd 2012-24 I CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 the maximum amount that may be paid to CONSULTANT "without further approval of the Mayor 5 and Common Council" and shall increase the amount of said allocation each time the maximum 6 amount is increased. 7 3. Bills shall be submitted at least on a monthly basis and no later than the 5th day of 8 each succeeding month. 9 4. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 10 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. II LEWIS BRISBOIS BISGAARD & SMITH LLP may include a single charge in an amount not to 12 exceed four percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone 13 charges, and postage. 14 5. If attorney fees are charged "portal to portal" (e.g., from office to court and return), 15 then LEWIS BRISBOIS BISGAARD & SMITH LLP shall not be entitled to reimbursement for 16 mileage and parking fees. 17 6. Status reports will be submitted to the CITY through the City Attorney's Office 18 whenever any significant event occurs, and in any event at least quarterly. 19 7. Copies of all opinions and documents, including drafts shall be provided to the City 20 Attorney's Office which may reproduce same and provide copies to other CITY officials. 21 8. Copies of any correspondence and other documents sent to any third parties shall also 22 be provided to the CITY through the City Attorney's Office. 23 9. Only Timothy Sabo, Elizabeth Martyn, or Stan Snyder of LEWIS BRISBOIS 24 BISGAARD & SMITH LLP or another senior attorney approved by the CITY shall provide the legal 25 advice contemplated by this Agreement. 26 27 28 10. II. 12. No client development costs are to be included in billings. No continuing education expenses are to be included in billings. CONSULTANT, at all times while performing under this Agreement, is and shall be F:\PENMAN\LBBS. ConsultSvcAg, wpd 2 2012-24 1 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 acting at all times as an independent contractor and not as an agent or employee of CITY. 5 CONSULTANT shall secure, at its expense, and be responsible for any and all payment of wages, 6 benefits and taxes, including, but not limited to, Income Tax, Social Security, State Disability 7 Insurance Compensation, Unemployment Compensation, and other payroll deductions for 8 CONSULTANT and its officers, agents, and employees, and all business licenses, if any are 9 required, in connection with the services to be performed hereunder. Neither CONSULTANT nor 10 its officers, agents and employees shall be entitled to receive any benefits which employees of the 11 CITY are entitled to receive and shall not be entitled to workers' compensation insurance, 12 unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, 13 pension, profit sharing or social security on account of CONSUL T ANT and its officers', agents' and 14 employees' work for the CITY. This Agreement does not create the relationship of agent, servant, 15 employee partnership or joint venture between the CITY and CONSULT ANT. 16 13. LEWIS BRISBOIS BISGAARD & SMITH LLP shall maintain the following types 17 of insurance with limits as shown: 18 19 20 21 22 23 24 25 a) Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of LEWIS BRISBOIS BISGAARD & SMITH LLP and all risks to such persons under this Agreement. LEWIS BRISBOIS BISGAARD & SMITH LLP shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. b) Comprehensive General and Automobile Liability Insurance coverage to include 26 contractual coverage and automobile coverage for owned, hired and non-owned 27 28 vehicles. The policy shall have at least a combined single limit of $1 ,000,000 for bodily injury and property damage. F:\PENMAN\LBBS. ConsultSvcAg. wpd 3 2012-24 2 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND LEWIS BRISBOIS BISGAARD & SMITH LLP 3 4 5 6 7 8 9 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 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." LEWIS BRISBOIS BISGAARD & SMITH LLP shall furnish certificates of insurance 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the City Attorney's Office, and shall maintain such insurance from the time LEWIS BRISBOIS BISGAARD & SMITH LLP commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insureds with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented under this Agreement. 25 14. All communications and billings to the CITY are to be directed as follows: City Attorney's Office 26 CITY OF SAN BERNARDINO 300 North "D" Street 27 San Bernardino, CA 92418 28 III F:\PENMAN\LBBS.ConsultSvcAg. wpd 4 2012-24 I 2 3 4 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND LEWIS BRISBOIS BISGAARD & SMITH LLP 15. Professional Practices. All professional services to be provided by CONSULTANT 5 pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with 6 the standards of care, diligence and skill ordinarily exercised by professional consultants in similar 7 fields and circumstances in accordance with sound professional practices. CONSULTANT also 8 warrants that it is familiar with all laws that may affect its performance of this Agreement and shall 9 advise CITY of any changes in any laws that may affect CONSULTANT's performance of this 10 Agreement. CONSULTANT further represents that no CITY employee will provide any services II under this Agreement. 12 16. Warrantv. CONSULTANT warrants that it shall perform the services required by this 13 Agreement in compliance with all applicable Federal and California employment laws including, but 14 not limited to, those laws related to minimum hours and wages; occupational health and safety; fair 15 employment and employment practices; workers' compensation insurance and safety in employment; 16 and all other Federal, State and local laws and ordinances applicable to the services required under 17 this Agreement. CONSULTANT shall indemnify and hold harmless CITY from and against all 18 claims, demands, payments, suits, actions, proceedings, and judgments of every nature and 19 description including reasonable attorneys' fees and costs, presented, brought, or recovered against 20 CITY for, or on account of any liability under any of the above-mentioned laws, arising from or 21 related to CONSULTANT's performance under this Agreement. 22 17. Non-discrimination. In performing this Agreement, CONSULTANT shall not engage 23 in, nor permit its officers, employees or agents to engage in, discrimination in employment of 24 persons because of their race, religion, color, national origin, ancestry, age, mental or physical 25 disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted 26 pursuant to Section 12940 of the Government Code. Violation of this provision may result in the 27 imposition of penalties referred to in Labor Code, Section 1735. 28 18. Non-Exclusive Agreement. CONSULTANT acknowledges that CITY may enter into F:\PENMAN\LBBS.ConsultSvcAg. wpd 5 2012-24 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 agreements with other consultants for services similar to the services that are subject to this 5 Agreement or may have its own employees perform services similar to those services contemplated 6 by this Agreement. 7 19. Delegation and Assignment. This is a personal service contract, and the duties set 8 forth herein shall not be delegated or assigned to any person or entity without the prior written 9 consent of CITY. CONSULTANT may engage a subcontractor(s) as permitted by law and may 10 employ other personnel to perform services contemplated by this Agreement at CONSULTANT's II sole cost and expense. 12 20. Conflicts oflnterest. During the term of this Agreement, CONSULTANT shall at 13 all times maintain a duty ofloyalty and a fiduciary duty as to the CITY and shall not accept payment 14 from or employment with any person or entity which will constitute a conflict of interest with the 15 CITY. 16 21. CITY Business Certificate. CONSULTANT shall obtain and maintain during the 17 term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the 18 City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, 19 insurance and approvals of whatever nature that are legally required of CONSULTANT to practice 20 its profession, skill or business. 21 22. Additional Services. CONSULTANT shall not receive compensation for any services 22 provided outside the Scope of Services unless the CITY, prior to CONSULTANT performing the 23 additional services, approves such additional services in writing. It is specifically understood that 24 oral requests and/or approvals of such additional services or additional compensation shall be barred 25 and are unenforceable. 26 23. Records and Audits. Records of CONSULTANT's services relating to this 27 Agreement shall be maintained in accordance with generally recognized accounting principles and 28 shall be made available to CITY for inspection and/or audit at mutually convenient times for a period F:\PENMAN\LBBS.ConsuItSvcAg. wpd 6 2012-24 1 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 ofthree (3) years from the Effective Date. 5 24. Term. This Agreement shall be deemed to have commenced on February 1, 2012 and 6 continue through June 30, 2012, unless the Agreement is previously terminated as provided for 7 herein. 8 25. Termination. CITY or CONSULTANT may terminate the services provided under 9 Section 1 of this Agreement upon thirty (30) days written notice to the other party. In the event of 10 termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of II termination. 12 26. Documents. In the event of termination of this Agreement, all documents prepared 13 by CONSULTANT in its performance of this Agreement including, but not limited to, finished or 14 unfinished background investigations, shall be delivered to the CITY within ten (I 0) days of delivery 15 of termination notice to CONSULTANT, at no cost to CITY. Any use of uncompleted documents 16 without specific written authorization from CONSULTANT shall be at CITY's sole risk and without 17 liability or legal expense to CONSULTANT. 18 27. Entire Agreement: This Agreement constitutes the entire Agreement between the 19 parties with respect to any matter referenced herein and supersedes any and all other prior writings 20 and oral negotiations. This Agreement may be modified only in writing, and signed by the parties 21 in interest at the time of such modification. The terms of this Agreement shall prevail over any 22 inconsistent provision in any other contract document appurtenant hereto, including exhibits to this 23 Agreement. 24 28. Attornevs' Fees: In the event that litigation is brought by any party in connection with 25 this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and 26 expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any 27 of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions 28 hereof. The costs, salary and expenses ofthe City Attorney and members of his office in enforcing F:\PENMAN\LBBS. ConsultSvcAg. wpd 7 2012-24 I CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this 5 Agreement. 6 29. Governing Law. This Agreement shall be governed by and construed under the laws 7 of the State of California without giving effect to that body oflaws pertaining to conflict of laws. 8 In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that 9 the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino 10 County, California. 11 30. Indemnification and Hold Harmless. CONSULTANT shall protect, defend, 12 indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, 13 officers, attorneys, agents and employees from any and all claims, losses, demands, suits, 14 administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage 15 to property or injuries to or death of any person or persons or damages of any nature including, but 16 not limited to, all civil claims or workers' compensation claims arising from or in any way related 17 to CONSULTANT's performance under this Agreement, except when caused solely by the CITY's 18 negligence. 19 31 Conflict ofInterest Disclosure: CONSULTANT or its employee may be subject to 20 the provisions of the California Political Reform Act of 1974 (the "Act"), which (I) requires such 21 persons to disclose financial interests that may be materially affected by the work performed under 22 this Agreement, and (2) prohibits such persons from making or participating in making decisions that 23 will have a foreseeable financial affect on such interest. 24 CONSULTANT shall conform to all requirements of the Act. Failure to do so 25 constitutes a material breach and is grounds for termination of the Agreement by CITY. 26 32. ResDonsibility for Errors. CONSULTANT shall be responsible for its work and 27 results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or 28 explanation as may be required by the CITY's representative, regarding any services rendered under F:\PENMAN\LBBS.ConsultSvcAg.wpd 8 2012-24 1 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BlSGAARD & SMITH LLP 4 this Agreement at no additional cost to CITY. In the event that an error or omission attributable to 5 CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other 6 CONSULTANT professional services necessary to rectify and correct the matter to the sole 7 satisfaction of CITY and to participate in any meeting required with regard to the correction. 8 33. Prohibited Emplovment. CONSULTANT shall not employ any current employee of 9 CITY to perform the work under this Agreement while this Agreement is in effect. 10 34. Costs. Each party shall bear its own costs and fees incurred in the preparation and 11 negotiation of this Agreement and in the performance of its obligations hereunder except as 12 expressly provided herein. 13 35. No Third Partv Beneficiary Rights. This Agreement is entered into for the sole 14 benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental 15 beneficiaries ofthis Agreement and no third party shall have any right in, under or to this Agreement. 16 36. Headings Paragraphs and subparagraph headings contained in this Agreement are 17 included solely for convenience and are not intended to modify, explain or to be a full or accurate 18 description of the content thereof and shall not in any way affect the meaning or interpretation of this 19 Agreement. 20 37. Waiver. The delay or failure of either party at any time to require performance or 21 compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver 22 of those rights to require such performance or compliance. No waiver of any provision of this 23 Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe 24 party against whom enforcement of a waiver is sought. The waiver of any right or remedy with 25 respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect 26 to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 27 38. Severability. If any provision of this Agreement is determined by a court of 28 competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not F:\PENMAN\LBBS.ConsultSvcAg. wpd 9 2012-24 1 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE 2 SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 affect the validity or enforceability ofthe remaining terms and provisions hereof or ofthe offending 5 provision in any other circumstance, and the remaining provisions of this Agreement shall remain 6 in full force and effect. 7 39. CounteI:Parts: This Agreement may be executed in one or more counterparts, each 8 of which shall be deemed an original. All counterparts shall be construed together and shall 9 constitute one agreement. 10 40. Corporate Authoritv. The persons executing this Agreement on behalf of the parties 11 hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and 12 that by doing so, the parties hereto are formally bound to the provisions of this Agreement. 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CONSULTANT c~~ Signature --r;.....".".~ ef."5~b" I A...i""... Name and Title 25 26 v__ /. ~.vY;1/"~ 27 28 F:\PENMAN\LBBS. ConsultSvcAg. wpd 10