Loading...
HomeMy WebLinkAbout09.A- City Attorney 9.A DOC!D: 1846 A CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman MlCC Meeting Date: OS/21/2012 Prepared by: Jolena E. Grider, (909) 384- 5355 Dept: City Attorney Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino, Acting as the Successor Agency to the San Bernardino Redevelopment Agency, Authorizing the Execution of a Professional Services Agreement with Stradling Y occa Carlson & Rauth, P.c. for Legal Services Relating to the Dissolution of the City's Redevelopment Agency. Financial Impact: N/A Motion: Adopt Resolution Synopsis of Previous Council Action: May 7, 2012 Council authorized the City Manager and City Attorney to hire and retain an attorney with expertise in redevelopment law to advise the City. Backl!round: SUDPortinl! Documents: Resolution 1846 (PDF) agrmt 1846 (PDF) Updated: 5/17/2012 by Jolena E. Grider A 1 RESOLUTION NO. 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH, P.C. FOR LEGAL SERVICES RELATING TO THE DISSOLUTION OF THE CITY'S REDEVELOPMENT AGENCY. 4 5 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 SECTION 1. The Mayor is hereby authorized and directed to execute on behalf of said 10 City, acting as the Successor Agency to the San Bernardino Redevelopment Agency, a 11 Professional Services Agreement with Stradling Yocca Carlson & Rauth, P.C. for legal 12 services, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by 13 reference as fully as though set forth at length. 14 15 The authorization granted hereunder shall expire and be void and of no SECTION 2. 16 17 further effect if the agreement is not executed by both parties and returned to the Office of the 18 City Clerk within sixty (60) days following the effective date of the resolution. 19 III 20 III 21 III 22 23 III 24 III 25 III 26 III 27 28 III i? t.l >- '" .z:: ~ .~ ~ c: " E " " ~ Cl <( <Il " U .~ " '" ro c: o <Il <Il .1! o ~ D. <S) ... <Xl ~ <S) ... <Xl ~ c: o :;:; " '0 <Il " '" ~ c: " E .z:: u ro '" <( . "....."",,....... ......".-..,.<-.. ~dRicI<8Ri:c'~i3cm-;- <\,L","'H(;'0.f;~,t...,.;._.;.. ,- 19.A'iJ 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH, P.c. FOR LEGAL SERVICES RELATING TO THE DISSOLUTION OF THE CITY'S REDEVELOPMENT AGENCY. 2 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 7 the day of 8 9 Council Members: 10 MARQUEZ 11 JENKINS 12 VALDIVIA 13 14 SHORETT 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 Common Council of the City of San Bernardino at a meeting thereof, held on ~ >- '" , 2012, by the following vote, to wit: :5 .~ AYES NAYS ABSTAIN ABSENT ~ c Q) E Q) ~ Cl <l: '" Q) u .~ Q) '" " c o '" '" ~ o ~ 0. '" ... 00 ~ 21 The foregoing Resolution is hereby approved this day of ,2012. '" ... 00 ~ c o :;::; ~ "0 '" Q) '" 19 Georgeann Hanna, City Clerk 20 24 Approved as to form: Patrick J. Morris, Mayor City of San Bernardino .. c Q) E .<: u " ~ ~ 22 23 25 26 27 es F. Penman City Attorney 2 I 2 3 ,= 'RO"'''<ONAC "","C,"" AGREEMENT BETWEEN THE CITY 0' MN .. BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO REDEVELOPMENT AGENCY, AND STRADLING YOCCA CARLSON & RAUTH, P.C. 4 5 This Agreement is made and entered into this _ day of May, 2012 by and between the CITY OF SAN BERNARDINO (hereinafter "CITY"), acting as the successor agency to the San Bernardino 6 7 Redevelopment Agency (RDA) and STRADLING YOCCA CARLSON & RAUTH, P.C. (hereinafter "SYCR"). fi u >- (/) .<: ~ .~ 8 9 SYCR will provide legal advice to the City Attorney's Office on legal issues 1. ~ c: Ql E Ql Ql ~ Cl <l: VI Ql U .~ Ql (/) "iij c: .S! VI VI The amounts expended under this agreement for attorney fees shall not exceed ~ ~ Q, 10 11 12 involving the dissolution of the City's Redevelopment Agency and the CITY's role as the successor agency of the RDA. SYCR shall not represent any client in any type of claim against the CITY without prior written approval to do so from the CITY through the City Attorney's Office. 13 14 15 2. SYCR shall be paid at the hourly rates set forth below: Attorneys - $325.00 per hour. 16 $100,000 without further approval of the Mayor and Common Council acting as successor agency '" ... <Xl ~ 17 to the RDA. CITY agrees to allocate sufficient amounts from tax increment funds as the sonrce of 18 funding for this Agreement and shall allocate an amount equal to the maximum amount that may be 19 paid to SYCR "without further approval of the Mayor and Common Council" and shall increase the '" ... <Xl ~ E ~ Cl '" 20 amount of said alleoation each time the maximum amoWlt is increased. i: Ql E 21 3. Bills shall be submitted at least on a monthly basis and no later than the 5'h day of "fi '" ~ 22 each succeeding month. <i 23 4. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 24 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 25 SYCR may include a single charge in an amount not to exceed four percent (4%) of attorney fees 26 in lieu of reimbursement for photocopying, telephone charges, and postage. 27 5. If attorney fees are charged "portal to portal" (e.g., from office to court and return), 28 then SYCR shall not be entitled to reimbursement for mileage and parking fees. Z:IGRlDER\Outsidc COllIlSe] PSA's\SYC&R for eOA Serv1ces_wpd_hvpd 1 19.A.b~ I 6. Status reports will be submitted to the CITY through the City Attorney's Office 2 whenever any significant event occurs, and in any event at least quarterly. 3 7. Copies of all opinions shall be provided to the City Attorney's Office which may 4 reproduce same and provide copies to other parties or attorneys in this or other matters. 5 8. Copies of any correspondence and other documents sent to any of the parties in this 6 7 matter shall also be provided to the CITY through the City Attorney's Office. 9. SYCR shall inform the City Attorney's Office of any meetings that are set with CITY il '-' >- lI) "" - .~ 8 9 staff prior to those meetings taking place. 10. Only Tom Clark or another senior attorney approved by the City Attorney shall _ c ~ E ~ ~ ~ Cl ..: VI ~ U c: ~ lI) 10 provide legal advice contemplated by this Agreement to the City Attorney's Office. 11 12 13 II. 12. No client development costs are to be included in billings. No continuing education expenses are to be included in billings. 13. SYCR at all times while performing under this Agreement, is and shall be acting at '" c all times as an independent contractor and not as an agent or employee of CITY. SYCR shall secure, .* VI ~ - o ~ 0.. 14 15 16 17 at its expense, and be responsible for any and all payment of wages, benefits and taxes, including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, '" '" "" Unemployment Compensation, and other payroll deductions for SYCR and its officers, agents and ~ '" '" employees, and all business licenses, if any are required, in connection with the services to be ~ 18 19 performed hereunder. Neither SYCR nor its officers, agents and employees shall be entitled to - E ~ Cl '" 20 21 .;.; receive any benefits which employees of the CITY are entitled to receive and shall not be entitled :ii E "" u '" - ;;: to worker's compensation insurance, unemployment compensation, medical insurance, life 22 23 24 25 insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of SYCR's and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between CITY and SYCR. 26 14. a) SYCR shall maintain the following types of insurance with limits as shown: Workers Compensation as required by the laws of the State of California, including Employment Liabilitywith $250,000 limits covering all persons providing 27 28 Z:\GRIDER\Outside Counsel PSA'sISYC&R for EDA Servioes.wpd-2.wpd 2 I 9.A.j I 1 2 service on behalf of SYCR and all risks to such persons under this Agreement. SYCR shall require its Workers Compensation carrier to waive all rights of 3 subrogation against the CITY and its officers and employees and any others for 4 whom services are being provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned 6 7 8 9 vehicles. The policy shall have at least a combined single limit of $1,000,000 for ~ () >- l/J .<: - .~ bodily injury and properly damage. Professional Liability Insurance with lintits of at least $1 ,000,000 per claim. In lieu c) - C <Il E <Il <Il ~ '" <( </) <Il U 1: <Il l/J '" c .S! </) </) .S! o ~ a. '" .... co - - 10 11 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." 12 13 14 IS SYCR shall furnish certificates of insurance and certified copies of all policies and 16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 17 to the commencement of performance of services hereunder, which certificates shall provide that 18 19 '" .... such insurance shall not be terminated or expire without thirty (30) days written notice to the City , :e - E ~ '" '" Attorney's Office, and shall maintain such insurance from the time SYCR commences performance 20 21 22 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 - C <Il E .<: u '" :t: <( 23 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 24 their employees, agents, volunteers and officers as additional named insureds with respect to 25 liabilities arising out of the performance of services hereunder. 26 All policies required above are to be primary and non-contributing with any insurance 27 policies or self-insurance programs carried or administered by the CITY or other parties represented 28 under this Agreement. Z:\GRlDER\Outside Counsel PSA's\SYC&R for EDA Services.wpd,2.wpd 3 I 9.A.b( I IS. All communications and billings to tbe CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 2 3 4 16. All professional services to be provided by SYCR pursuant to tbis Agreement shall 5 6 be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in ~ <..> accordance with sound professional practices. SYCR also warrants that it is familiar with all laws ~ .<: that may affect its performance of this Agreement and shall advise CITY of any changes in any laws ~ 7 8 9 - ~ ~ E ~ ~ - Cl <l: 10 that may affect SYCR's performance of this Agreement. SYCR further represents that no CITY employee will provide any services under this Agreement. 11 12 17. SYCR warrants that it shall perform the services required by this Agreement in ill " compliance with all applicable Federal and California employment laws including, but not limited ~ Vl 13 ~ ~ o <Jl and employment practices; workers' compensation insurance and safetyin employment; and all other .;1 o - 0.. to, those laws related to minimum hours and wages; occupational health and safety; fair employment 14 15 16 Federal, State and local laws and ordinances applicable to the services required under this "' ..,. <Xl - - Agreement. SYCR shall indemnify and hold harmless CITY from and against all claims, demands, 17 payments, suits, actions, proceedings, and judgments of every nature and description including ~ - E - Cl ~ 18 19 20 21 reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to SYCR's .;.; ~ ~ E .r: " ~ - < performance under this Agreement. 18. In performing this Agreement, SYCR shall not engage in, nor permit its officers, 22 23 24 25 26 27 28 employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 19. SYCR acknowledges that CITY may enterinto agreements with other consultants for Z:\GRIDERIOutside Olunsel PSA's\SYC&R for EDA Services.wpd-2.wpd 4 I services similar to the services that are subject to this Agreement or may bave its own employees 2 perform services similar to those services contemplated by this Agreement. 3 20. Tbis is a personal service contract, and tbe duties set forth berein shall not be 4 delegated or assigned to any person or entity without the prior written consent of CITY. SYCR may engage a subcontractor(s) as permitted by law and may employ otherpersormel to perform services 5 6 contemplated by this Agreement at SYCR's sole cost and expense. 7 21. During the term of this Agreement, SYCR sball at all times maintain a dutyofloyalty C? u >- "' J:: - 'j; 8 9 10 11 12 13 14 and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity wbicb will constitute a conflict of interest with tbe CITY. - 1: ~ E ~ ~ - Business Registration Certificate pursuant to Title 5 ofthe City of San Bernardino Municipal Code ;f .. ~ " .:; - " "' 22. SYCR shall obtain and maintain during the term of this Agreement, a valid CITY and any and all otber licenses, permits, qualifications, insurance and approvals of wbatever nature that are legally required of SYCR to practice its profession, skill or business. ~ 1: o .~ .. ~ of Services unless the CITY, prior to SYCR performing the additional services, approves such e a. additional services in writing. It is specifically understood that oral requests andlor approvals of ;,; .. ., - 23. SYCR shall not receive compensation for any services provided outside the Scope 15 16 17 such additional services or additional compensation shall be barred and are unenforceable. <0 .. ., - E - '" ~ 18 24. Records of SYCR's services relating to this Agreement shall be maintained in accordance witb generally recognized accounting principles and shall be made available to CITY for 19 20 inspection andlor audit at mutually convenient times for a period of three (3) years from tbe Effective - 1: ~ E J:: " ~ - :i 21 Date. 22 25. This Agreement shall commence on the Effective Date and continue through 23 June 30, 2013, unless the Agreement is previously terminated as provided for herein. 24 26. CITY or SYCR may terminate the services provided under Section I of this 25 Agreement upon thirty (30) days written notice to the other party. In the event oftermination, SYCR 26 shall be paid the reasonable value of services rendered to the date oftermination. 27 27. In the event oftermination of this Agreement, all documents prepared by SYCR in 28 its performance of this Agreement including, but not limited to, finished or unfinished background Z:\GRlDER\OulSide Counsel PSA's\SYC&R for BDA Services.wpd-2.wpd 5 1 investigations, shall be delivered to the CITY within ten (10) days of delivery oftermination notice 2 to SYCR, at no cost to CITY. Any use of uncompleted documents without specific written 3 authorization fromSYCR shall be at CITY's sole risk and without liability or legal expense to SYCR. 4 28. This Agreement constitutes the entire Agreement between the parties with respect to 5 any matter referenced herein and supersedes any and all other prior writings and oral negotiations. 6 This Agreement may be modified only in writing, and signed by the parties in interest at the time of 7 such modification. The terms ofthis Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. i? u >- Vl J: '" ~ 8 9 29. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, ~ c ~ E ~ ~ ~ Cl .0: '" ~ u ~ ~ Vl ~ c .2 '" '" .:!! o ~ a. 10 11 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this 12 13 14 15 Agreement. 16 30. This Agreement shall be governed by and construed under the laws of the State of 17 '" ... '" California without giving effect to that body oflaws pertaining to conflict oflaws. In the event of ::. '" ... '" ~ E ~ Cl ~ 18 any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and 19 exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, 20 California. " c ~ E J: U ~ ~ < 21 31. SYCR shall protect, defend, indemnifY and hold harmless CITY and its elected and 22 appointed officials, boards, commissions, officers, attorneys, agents and employees from any and 23 all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, 24 including reasonable attorney fees, damage to property or injuries to or death of any person or 25 persons or damages of any nature including, but not limited to, all civil claims or workers' 26 compensation claims arising from or in any way related toSYCR's performance under this 27 Agreement, except when caused solely by the CITY's negligence. 28 32. SYCR or its employee may be subject to the provisions of the California Political Z,\GRIDER\Outside COWl$e1 PSA's\WC&R for EDA Servkes.wpd.2.wpd 6 I Reform Act ofl974 (the" Act"), which (I) requires such persons to disclose financial interests that 2 may be materially affected by the work performed under this Agreement, and (2) prohibits such 3 persons from making or participating in making decisions that will have a foreseeable financial affect 4 on such interest. 5 SYCR shall conform to all requirements of the Act. Failure to do so constitutes 6 material breach and is grounds for termination of this Agreement by CITY. 7 33. SYCR shall be responsible for its work and results under this Agreement. SYCR, ~ u >- III .c - .~ 8 9 10 11 12 l3 14 when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to SYCR occurs, then SYCR shall, at no cost to - c " E " " ~ Ol ..: '" " u .~ " III '" c .2 '" '" J!! o ~ 0.. CITY, provide all other SYCR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 34. SYCR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 15 16 17 18 35. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. '" '" '" - '" '" '" - E ~ Ol '" .. c " E .c u '" - ;;;: 19 36. This Agreement is entered into for the sole benefit of CITY and SYCR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall 20 21 22 have any right in, under or to this Agreement. 37. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those 23 rights to require such performance or compliance. No waiver of aoy provision of this Agreement 24 shall be effective unless in writing and signed by a duly authorized representative of the party against 25 whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any 26 occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other 27 occurrence or event, nor shall any waiver constitute a continuing waiver. 28 38. If any provision ofthis Agreement is determined by a court of competent jurisdiction Z:\GRIDER\Out5ide Counsel PSA's\SYC&R for EDA SeTVices.wpd"2.wpd 7 ;:fi!~lI!~t'al"31 i,l 1 to be invalid or unenforceable for any reason, such determination shall not affect the validity or 2 enforceability ofthe remaining terms and provisions hereof or ofthe offending provision in any other 3 circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 4 39. This Agreement maybe executed in one or more counterparts, each of which shall 5 be deemed an original. All counterparts shall be construed together and shall constitute one 6 agreement. 7 40. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the ~ u > V> .<: ~ .~ 8 9 parties hereto are formally bound to the provisions of this Agreement. ~ c ~ E ~ ~ ~ '" <( .. ~ " '> ~ ~ V> ro c o .. .. ~ - o ~ a. 10 III 11 III ]2 III ]3 III 14 III 15 III ]6 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III Z;\GRlDER\Outside COUl1.'lcl PSA's\SYC&R for BOA Services.wpd-2.wpd 8 '" ... '" ~ '" ... '" ~ E ~ '" ro .. c ~ E .<: " ro ~ <i 1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN 2 BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE SAN BERNARDINO 3 REDEVELOPMENT AGENCY, AND STRADLING YOCCA CARLSON & RAUTH, P.C. 4 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and 6 through their respective authorized officers, as of the date fust written above. ~ u >- STRADLING YOCCA CARLSON & RAUTH, P.C. ~ '" ~ By: Tom Clark ~ ~ ~ E ~ ~ ~ Cl 4: VI ~ U ~ ~ '" ~ ~ o VI VI oS! o ~ a. CITY OF SAN BERNARDINO, Acting as the Successor Agency ofRDA By: Patrick J. Morris, Mayor '" ... 00 ~ '" ... 00 ~ E ~ Cl ~ ~ ~ ~ E .<: u ~ ~ <i Z:\GRIDER\Outside Counsel PSA'sISYC&R for EDA Services.wpd-2.wpd 9 " 6;P~_'~1' . .. .. ~7~~~~~E9,~';~~i~1'"