HomeMy WebLinkAbout2012-105 1 RESOLUTION NO. 2012-105
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
3 OF SAN BERNARDINOAUTHORIZING THE EXECUTION OF A PROFESSIONAL
q 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
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City a Professional Services Agreement with Stradling Yocca Carlson& Rauth, P.C. for legal
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11 services, a copy of which is attached hereto marked Exhibit"A"and incorporated herein by
12 reference as fully as though set forth at length.
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19 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
16 City Clerk within sixty(60) days following the effective date of the resolution.
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2012-105
1 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.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
joint
6 Common Council of the City of San Bernardino at a regular meeting thereof, held on
7 the 18th day of June 2012,by the following vote,to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
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MARQUEZ x
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11 JENKINS x
12 VALDIVIA x
13 SHORETT x
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KELLEY x
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JOHNSON x
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x
17 MCCAMMACK
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19 George Hanna, City Clerk
2o The foregoing Resolution is hereby approved this 30th day of June 2012.
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J. Morris, yQf
23 City of San Bernardino
Approved as to
24 form:
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27 es F. Penman
2E ityAttorney
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2012-105
COPY
I PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND STRADLING YOCCA CARLSON& RAUTH,P.C. FOR
2 REORGANIZATION AND FINANCIAL RESTRUCTURING ADVICE.
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4 This Agreement is made and entered into this 18thday of June, 2012 by and between the CITY
5 OF SAN BERNARDINO (hereinafter "CITY") and STRADLING YOCCA CARLSON &
6 RAUTH, P.C. (hereinafter"SYCR").
7 1. SYCR will provide legal advice to the City Attorney's Office on legal issues
8 involving the reorganization and financial restructuring of the City. SYCR shall not represent
9 any client in any type of claim against the CITY without prior written approval to do so from the
10 CITY through the City Attorney's Office.
11 2. SYCR shall be paid at the hourly rates set forth below:
12 Attorneys- $380.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $100,000 without further approval of the Mayor and Common Council.
15 3. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
each succeeding month.
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17 4. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 SYCR may include a single charge in an amount not to exceed four percent(4%)of attorney fees
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.
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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.
7 11. No client development costs are to be included in billings.
8 12. No continuing education expenses are to be included in billings.
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
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
17 shall not be entitled to worker's compensation insurance, unemployment compensation, medical
18 insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security
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
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2012-105
1 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
8 lieu of naming the CITY as an additional insured, the policy may be endorsed as
9 follows:
"Insurance coverage afforded by this policy shall also apply
10 to the liability assumed by the Insured under the Agreement with the
CITY OF SAN BERNARDINO for legal services, provided such
II 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."
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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
17 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
18 City Attorney's Office, and shall maintain such insurance from the time SYCR commences
19 performance of services hereunder until the completion of such services.
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 carried or administered by the CITY or other parties
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1 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
300 North "D" Street
4 San Bernardino,CA 92418
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6 16. All professional services to be provided by SYCR pursuant to this Agreement
7 Shall 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
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circumstances in accordance with sound professional practices. SYCR also warrants that it is
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familiar with all laws that may affect its performance of this Agreement and shall advise CITY of
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any changes in any laws that may affect SYCR's performance of this Agreement. SYCR further
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12 represents that no CITY employee will provide any services under this Agreement.
13 17. SYCR warrants that it shall perform the services required by this Agreement in
14 compliance with all applicable Federal and California employment laws including,but not limited
15 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
17 employment; and all other Federal, State and local laws and ordinances applicable to the services
18 required under this Agreement. SYCR shall indemnify and hold harmless CITY from and against
19 all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and
20 description including reasonable attorneys'fees and costs,presented,brought,or recovered against
21 CITY for, or on account of any liability under any of the above-mentioned laws, arising from or
related to SYCR's performance under this Agreement.
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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
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1 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
8 may engage a subcontractor(s) as permitted by law and may employ other personnel to perform
9 services contemplated by this Agreement at SYCR's sole cost and expense.
10 21. During the term of this Agreement, SYCR shall at all times maintain a duty of
11 loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with
12 any person or entity which will constitute a conflict of interest with the CITY.
13 22. SYCR shall obtain and maintain during the term of this Agreement,a valid CITY
14 Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code
15 and any and all other licenses,permits, qualifications,insurance and approvals of whatever nature
16 that are legally required of SYCR to practice its profession, skill or business.
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
19 additional services in writing. It is specifically understood that oral requests and/or approvals of
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 /2 3/ 2a/Z unless the Agreement is previously terminated as provided for herein.
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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
8 specific written authorization fromSYCR shall be at CITY's sole risk and without liability or legal
9 expense to SYCR.
10 28. This Agreement constitutes the entire Agreement between the parties with respect
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
13 interest at the time of such modification. The terms of this Agreement shall prevail over any
14 inconsistent provision in any other contract document appurtenant hereto, including exhibits to
15 this Agreement.
16 29. In the event that litigation is brought by any party in connection with this
17 Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and
18 expenses, including reasonable attorneys' fees, incurred by the prevailing party 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 "attorneys' 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,
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1 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
8 Agreement, except when caused solely by the CITY's negligence.
9 32. SYCR or its employee may be subject to the provisions of the California Political
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) prohibits such
12 persons from making or participating in making decisions that will have a foreseeable financial
13 affect on such interest.
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.
17 SYCR, when requested, shall furnish clarification and/or explanation as may be required by the
18 CITY's representative,regarding any services rendered under this Agreement at no additional cost
19 to CITY. In the event that an error or omission attributable to SYCR occurs,then SYCR shall,at
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
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1 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
8 Agreement shall be effective unless in writing and signed by a duly authorized representative of
9 the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
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
13 jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the
14 validity or enforceability of the remaining terms and provisions hereof or of the offending
15 provision in any other circumstance,and the remaining provisions of this Agreement shall remain
16 in full force and effect.
17 39. This Agreement may be executed in one or more counterparts, each of which shall
18 be deemed an original. All counterparts shall be construed together and shall constitute one
19 agreement.
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.
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2012-105
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
through their respective authorized officers, as of the date first written above.
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Dated: 2012 STRADLING YOCCA CARLSON&
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RAUTH,P.C.
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9 By: Paul Glassman
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12 Dated: 2012 CITY OF SAN BERNARDINO,
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By: Patrick J. Moms,Mayor
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17 Approved as to form:
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JAMES F. PENMAN,
19 City Attorney
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21 By: �r
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