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HomeMy WebLinkAbout05.C- City Attorney j RESOLUTION(ID# 1895) DOC ID: 1895 j CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman M/CC Meeting Date: 06/18/2012 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 Authorizing the Execution of an Agreement Between Stradling Yocca Carlson& Rauth, P.C. for Reorganization and Financial Restructuring Advice. Financial Impact: Account Budgeted Amount:N/A Account No.N/A Account Description: N/A Balance as of:N/A Balance after approval of this item: N/A Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. Motion: Adopt Resolution. City Attorney Review: Supporting Documents: reso 1895 (PDF) agrmt 1895 (PDF) 'err Updated:6/13/2012 by James F.Penman Page 1 1 RESOLUTION NO. 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINOAUTHORIZING THE EXECUTION OF A PROFESSIONAL 4 SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON&RAUTH,P.C. FOR LEGAL SERVICES RELATING TO REORGANIZATION AND FINANCIAL 5 RESTRUCTURING. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 7 CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The Mayor is hereby authorized and directed to execute on behalf of said c 9 d City a Professional Services Agreement with Stradling Yocca Carlson&Rauth,P.C.for legal ,£ m 10 services, a copy of which is attached hereto marked Exhibit"A"and incorporated herein by 11 U 12 reference as fully as though set forth at length. } w 13 � 14 SECTION 2. The authorization granted hereunder shall expire and be void and of no © 15 further effect if the agreement is not executed by both parties and returned to the Office of the 2 16 City Clerk within sixty(60)days following the effective date of the resolution. � 17 18 0 19 c 20 E s 21 Q 22 23 24 25 26 27 28 1 S.C.a C1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINOAUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON& RAUTH,P.C. 3 FOR LEGAL SERVICES RELATING TO REORGANIZATION AND FINANCIAL RESTRUCTURING. 4 s F HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, held on 7 the day of 2012,by the following vote,to wit: a Council Members: AYES NAYS ABSTAIN ABSENT c 9 d MARQUEZ d 10 v rn 11 JENKINS a -- � U 12 VALDIVIA N 13 SHORETT 19 ... KELLEY 15 0 16 JOHNSON ce 17 MCCAMMACK 16 0 N 19 Georgeann Hanna,City Clerk ` c 20 The foregoing Resolution is hereby approved this day Of ,2012. s u 21 10 Q 22 Patrick J.Morris,Mayor 23 City of San Bernardino 24 Approved as to form: 2s 26 27 es F. Penman 26 ity Attorney 2 — Packet Pg. 49 1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND STRADLING YOCCA CARLSON&RAUTH,P.C.FOR 2 REORGANIZATION AND FINANCIAL RESTRUCTURING ADVICE. 3 4 This Agreement is made and entered into this_day of June, 2012 by and between the CITY 5 OF SAN BERNARDINO (hereinafter "CITY") and STRADLING YOCCA CARLSON & 6 RAUTH,P.C. (hereinafter"SYCR"). I. SYCR will provide legal advice to the City Attorney's Office on legal issues 7 involving the reorganization and financial restructuring of the City. SYCR shall not represent m 8 9 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. > 10 N 2. SYCR shall be paid at the hourly rates set forth below: 11 m Attorneys-$380.00 per hour. 12 13 The amounts expended under this agreement for attorney fees shall not exceed 0 $100,000 without further approval of the Mayor and Common Council. m 14 3. Bills shall be submitted at least on a monthly basis and no later than the 5a'day of rn 15 ao each succeeding month. E 16 4. The actual cost for filing fees,telephone charges,photoco pying,Postage,lodging, m mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 18 z SYCR may include a single charge in an amount not to exceed four percent(4%)of attorney fees z 19 a 20 in lieu of reimbursement for photocopying,telephone charges,and postage. 21 5. If attorney fees are charged"portal to portal"(e.g.,from office to court and return), 22 then SYCR shall not be entitled to reimbursement for mileage and parking fees. 23 6. Status reports will be submitted to the CITY through the City Attorney's Office 24 whenever any significant event occurs,and in any event at least quarterly. 25 7. Copies of all opinions shall be provided to the City Attorney's Office which may 26 reproduce same and provide copies to other parties or attorneys in this or other matters. O 1 Packet Pg:J50 i 1 8. Copies of any correspondence and other documents sent to any of the parties in this 2 matter shall also be provided to the CITY through the City Attorney's Office. 3 9. SYCR shall inform the City Attorney's Office of any meetings that are set with 4 CITY staff prior to those meetings taking place. 5 10. Only Paul Glassman or another senior attorney approved by the City shall provide, 6 legal advice contemplated by this Agreement to the City Attorney's Office. c 7 11. No client development costs are to be included in billings. E m 8 12. No continuing education expenses are to be included in billings. a 9 13. SYCR,at all times while performing under this Agreement,is and shall be acting at 10 all times as an independent contractor and not as an agent or employee of CITY. SYCR shall 11 secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes, 12 including, but not limited to, Income Tax, Social Security, State Disability Insurance 13 Compensation, Unemployment Compensation, and other payroll deductions for SYCR and its A 14 officers, agents and employees, and all business licenses, if any are required, in connection with 15 the services to be performed hereunder. Neither SYCR nor its officers, agents and employees 16 shall be entitled to receive any benefits which employees of the CITY are entitled to receive and m 17 shall not be entitled to worker's compensation insurance, unemployment compensation, medical m 18 insurance, life insurance,paid vacations,paid holidays,pension, profit sharing or social security m 19 on account of SYCR's and its officers', agents' and employees' work for the CITY. This 20 Agreement does not create the relationship of agent,servant,employee partnership or joint venture 21 between CITY and SYCR. 22 14. SYCR shall maintain the following types of insurance with limits as shown: 23 a) Workers Compensation as required by the laws of the State of California, 24 including Employment Liability with $250,000 limits covering all persons 25 providing service on behalf of SYCR and all risks to such persons under this © 26 Agreement. SYCR shall require its Workers Compensation carrier to waive all 2 PacketPg. 51 I rights of subrogation against the CITY and its officers and employees and any 2 others for whom services are being provided under this Agreement. 3 b) Comprehensive General and Automobile Liability Insurance coverage to include 4 contractual coverage and automobile coverage for owned, hired and non-owned 5 vehicles. The policy shall have at least a combined single limit of$1,000,000 for 6 bodily injury and property damage. 7 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In d E d 8 lieu of naming the CITY as an additional insured, the policy may be endorsed as � a 9 follows: � "Insurance coverage afforded by this policy shall also apply w 10 to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal services, provided such 11 liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All 12 other provisions of this policy are to remain unchanged." 13 y 14 SYCR shall furnish certificates of insurance and certified copies of all policies and 15 endorsements to the City Attorney's Office evidencing the insurance coverage above required 16 prior to the commencement of performance of services hereunder,which certificates shall provide £ a, 17 that such insurance shall not be terminated or expire without thirty(30) days written notice to the d 18 City Attorney's Office, and shall maintain such insurance from the time SYCR commences s U N 19 performance of services hereunder until the completion of such services. a 20 All policies, with respect to the insurance coverage above required, except for the 21 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 22 obtain additional endorsements naming the CITY and all parties represented under this 23 Agreement, their employees, agents, volunteers and officers as additional named insureds with 24 respect to liabilities arising out of the performance of services hereunder. 25 All policies required above are to be primary and non-contributing with any 26 insurance policies or self-insurance programs carved or administered by the CITY or other parties 3 I represented under this Agreement. 2 15. All communications and billings to the CITY are to be directed as follows: 3 City Attorney's Office CITY OF SAN BERNARDINO 4 300 North"D" Street San Bernardino,CA 92418 5 6 16. All professional services to be provided by SYCR pursuant to this Agreement Shall be provided by skilled personnel and in a manner consistent with the standards of care, c 7 diligence and skill ordinarily exercised by professional consultants in similar fields and d i 8 circumstances in accordance with sound professional practices. SYCR also warrants that it is 9 familiar with all laws that may affect its performance of this Agreement and shall advise CITY of N 10 any changes in any laws that may affect SYCR's performance of this Agreement. SYCR further 11 12 represents that no CITY employee will provide any services under this Agreement. 17. SYCR warrants that it shall perform the services required by this Agreement in `o 13 •2 compliance with all applicable Federal and California employment laws including,but not limited 9 14 IS to, those laws related to minimum hours and wages; occupational health and safety; fair 16 employment and employment practices; workers' compensation insurance and safety in € employment; and all other Federal, State and local laws and ordinances applicable to the services m 17 required under this Agreement. SYCR shall indemnify and hold harmless CITY from and against E 18 19 all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and x 20 description including reasonable attorneys'fees and costs,presented,,brou ght,or recovered against 21 CITY for,or on account of any liability under any of the above-mentioned laws, arising from or 22 related to SYCR's performance under this Agreement. 23 18. In performing this Agreement,SYCR shall not engage in,nor permit its officers, 24 employees or agents to engage in,discrimination in employment of persons because of their race, 25 religion, color, national origin, ancestry, age, mental or physical disability, medical condition, 26 marital status, sexual gender or sexual orientation,except as permitted pursuant to Section 12940 4 I of the Government Code. Violation of this provision may result in the imposition of penalties 2 referred to in Labor Code,Section 1735. 3 19. SYCR acknowledges that CITY may enter into agreements with other consultants 4 for services similar to the services that are subject to this Agreement or may have its own 5 employees perform services similar to those services contemplated by this Agreement. 6 20. This is a personal service contract,and the duties set forth herein shall not be 7 delegated or assigned to any person or entity without the prior written consent of CITY. SYCR c d E m 8 may engage a subcontractor(s) as permitted by law and may employ other personnel to perform m a 9 services contemplated by this Agreement at SYCR's sole cost and expense. rr L) to 21. During the term of this Agreement, SYCR shall at all times maintain a duty of I I loyalty and a fiduciary duty as to the CITY and shall not accept payment from or em to p yment with 12 any person or entity which will constitute a conflict of interest with the CITY. c 13 22. SYCR shall obtain and maintain during the term of this Agreement,a valid CITY c .N 14 Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code N 15 and any and all other licenses,permits,qualifications,insurance and approvals of whatever nature r° 16 that are legally required of SYCR to practice its profession,skill or business. E rn 17 23. SYCR shall not receive compensation for any services provided outside the Scope 18 of Services unless the CITY, prior to SYCR performing the additional services, approves such u m 19 additional services in writing. It is specifically understood that oral requests and/or approvals of a 20 such additional services or additional compensation shall be barred and are unenforceable. 21 24. Records of SYCR's services relating to this Agreement shall be maintained in 22 accordance with generally recognized accounting principles and shall be made available to CITY 23 for inspection and/or audit at mutually convenient times for a period of three (3)years from the 24 Effective Date. 25 25. This Agreement shall commence on the Effective Date and continue through © 26 unless the Agreement is previously terminated as provided for herein. 5 Packet Pg. 54 1 26. CITY or SYCR may terminate the services provided under Section 1 of this 2 Agreement upon thirty (30) days written notice to the other party. In the event of termination, 3 SYCR shall be paid the reasonable value of services rendered to the date of termination. 4 27. In the event of termination of this Agreement,all documents prepared by SYCR 5 in its performance of this Agreement including, but not limited to, finished or unfinished 6 background investigations, shall be delivered to the CITY within ten (10) days of delivery of 7 termination notice to SYCR, at no cost to CITY. Any use of uncompleted documents without E d m 8 specific written authorization fromSYCR shall be at CITY's sole risk and without liability or legal a, 9 expense to SYCR. � U ]0 28, This Agreement constitutes the entire Agreement between the parties with respect N n 11 to any matter referenced herein and supersedes any and all other prior writings and oral 12 negotiations. This Agreement may be modified only in writing, and signed by the parties in c 13 interest at the time of such modification. The terms of this Agreement shall prevail over any u, 9 14 inconsistent provision in any other contract document appurtenant hereto, including exhibits to n 15 this Agreement. 16 29. In the event that litigation is brought by any party in connection with this E m 17 Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and c N 18 expenses, including reasonable attorneys' fees, incurred by the prevailing parry in the exercise of 19 any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or 20 provisions hereof. The costs,salary and expenses of the City Attorney and members of his office 21 in enforcing this contract on behalf of the CITY shall be considered as "attomeys' fees" for the 22 purposes of this Agreement. 23 30. This Agreement shall be governed by and construed under the laws of the State of 24 California without giving effect to that body of laws pertaining to conflict of laws. In the event of 25 any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and 26 exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, 6 Packet Pg. 55 G I California. 2 31. SYCR shall protect,defend,indemnify and hold harmless CITY and its elected 3 and appointed officials,boards,commissions,officers,attorneys, agents and employees from any 4 and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, 5 including reasonable attorney fees, damage to property or injuries to or death of any person or 6 persons or damages of any nature including, but not limited to, all civil claims or workers' 7 compensation claims arising from or in any way related to SYCR's performance under this E 8 Agreement,except when caused solely by the CITY's negligence. m a 9 32. SYCR or its employee may be subject to the provisions of the California Political U N 10 Reform Act of 1974(the"Act"),which(1)requires such persons to disclose financial interests that 11 may be materially affected by the work performed under this Agreement, and (2 °rte° )prohibits such 12 persons from making or participating in making decisions that will have a foreseeable financial r 13 affect on such interest. °— .y 14 SYCR shall conform to all requirements of the Act. Failure to do so constitutes 15 material breach and is grounds for termination of this Agreement by CITY. 16 33. SYCR shall be responsible for its work and results under this Agreement. E`rn m 17 SYCR, when requested, shall furnish clarification and/or explanation as may be required by the ro 18 CITY's representative,regarding any services rendered under this Agreement at no additional cost u 19 to CITY. In the event that an error or omission attributable to SYCR occurs,then SYCR shall,at a 20 no cost to CITY,provide all other SYCR professional services necessary to rectify and correct the 21 matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the 22 correction. 23 34. SYCR shall not employ any current employee of CITY to perform the work under 24 this Agreement while this Agreement is in effect. 25 35. Each party shall bear its own costs and fees incurred in the preparation and 26 negotiation of this Agreement and in the performance of its obligations hereunder except as 7 I expressly provided herein. 2 36. This Agreement is entered into for the sole benefit of CITY and SYCR and no 3 other parties are intended to be direct or incidental beneficiaries of this Agreement and no third 4 party shall have any right in,under or to this Agreement. 5 37. The delay or failure of either party at any time to require performance or 6 compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver 7 of those rights to require such performance or compliance. No waiver of any provision of this E 8 Agreement shall be effective unless in writing and signed by a duly authorized representative of m 9 the party against whom enforcement of a waiver is sought. The waiver of any right or remedy M 10 with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with ") 11 respect to any other occurrence or event,nor shall any waiver constitute a continuing waiver. 12 38. If any provision of this Agreement is determined by a court of competent O13 jurisdiction to be invalid or unenforceable for any reason,such determination shall not affect the m 14 validity or enforceability of the remaining terms and provisions hereof or of the offending K 15 provision in any other circumstance,and the remaining provisions of this Agreement shall remain 16 in full force and effect. E m 17 39. This Agreement may be executed in one or more counterparts,each of which shall c d 18 be deemed an original. All counterparts shall be construed together and shall constitute one c v 19 agreement. G 20 40. The persons executing this Agreement on behalf of the parties hereto warrant that 21 they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, 22 the parties hereto are formally bound to the provisions of this Agreement. 23 /// 24 /// 25 /// 26 8 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN 1 BERNARDINO AND STRADLING YOCCA CARLSON&RAUTH,P.C.FOR 2 REORGANIZATION AND FINANCIAL RESTRUCTURING ADVICE. 3 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and 4 through their respective authorized officers,as of the date first written above. 5 6 Dated: 2012 STRADLING YOCCA CARLSON& 7 RAUTH,P.C. m E 8 d 9 By: Paul Glassman a 10 N 11 rn Dated: 12 2012 CITY OF SAN BERNARDINO, 13 N 14 By:Patrick J. Moms,Mayor 15 m m 16 £ rn 17 Approved as to form: R c 18 E JAMES F.PENMAN 19 City Attorney a 20 21 By: 22 23 24 25 26 9 Packet Pg. 58