HomeMy WebLinkAbout11.A- City Attorney's Office Entered Into Rec, at MCC/CDC Mtg: 5 G
b y. 64-e le-co Agenda Rem No: / -/Lc-s
by:
1 RESOLUTION NM ClekCDC SeCretary
2 City of San Bernardino
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
3 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
4 SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH,P.C.
FOR LEGAL SERVICES RELATING RECALL ELECTION ISSUES.
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7
SECTION 1. The Mayor is hereby authorized and directed to execute on behalf of said
8
9 City a Professional Services Agreement with Stradling Yocca Carlson& Rauth, P.C. for legal
lo services relating to recall election issues, a copy of which is attached hereto marked Exhibit
11 "A" and incorporated herein by reference as fully as though set forth at length.
12
13 SECTION 2. The authorization granted hereunder shall expire and be void and of no
14 further effect if the agreement is not executed by both parties and returned to the Office of the
15
City Clerk within sixty (60) days following the effective date of the resolution.
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1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH,P.C.
3 FOR LEGAL SERVICES RELATING RECALL ELECTION ISSUES.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof, held on
6
the day of , 2013, by the following vote,to wit:
s
Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ
10 JENKINS
11 VALDIVIA
12
SHORETT
13
14 KELLEY
15 JOHNSON
16 MCCAMMACK
17
18 Georgeann Hanna, City Clerk
19 The foregoing Resolution is hereby approved this day of , 2013.
20
21
Patrick J. Morris, Mayor
22 City of San Bernardino
23 Approved as to
form:
24
25
26 C`�
J na . Grider
27 Senior ssistant City Attorney
2s
2
M •
j
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND STRADLING YOCCA CARLSON & RAUTH, P.C. FOR LEGAL
U
3 C SERVICES RELATING TO RECALL ELECTION ISSUES
zT s Agreement is made and entered into this day of May,2013 by and between the CITY OF
o E AN BERNARDINO (hereinafter "CITY") and STRADLING YOCCA CARLSON & RAUTH,
c � �
. (hereinafter"SYCR").
Ul. SYCR will provide legal advice to the City Clerk on legal issues involving recall
8 election issues. SYCR shall not represent any client in any type of claim against the CITY without
9 prior written approval to do so from the CITY through the City Attorney's Office. All billings and
10 copies of all legal opinions shall be submitted to the Senior Assistant City Attorney.
11 2. SYCR shall be paid at the hourly rates set forth below:
12 Attorneys - $300.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 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 5" day of
16 each succeeding month.
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. Only Tom Clark or another senior attorney approved by the City Council shall
24 provide legal advice contemplated by this Agreement to the City Clerk.
25 7 No client development costs are to be included in billings.
26 8 No continuing education expenses are to be included in billings.
27 9 SYCR, at all times while performing under this Agreement, is and shall be acting at
28 all times as an independent contractor and not as an agent or employee of CITY. SYCR shall secure,
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardirk Recall issues Final 5-3-13.wpd
r ,
I at its expense, and be responsible for any and all payment of wages, benefits and taxes, including,
2 but not limited to, Income Tax, Social Security, State Disability Insurance Compensation,
3 Unemployment Compensation, and other payroll deductions for SYCR and its officers,agents and
4 employees, and all business licenses, if any are required, in connection with the services to be
5 performed hereunder. Neither SYCR nor its officers, agents and employees shall be entitled to
6 receive any benefits which employees of the CITY are entitled to receive and shall not be entitled
7 to worker's compensation insurance, unemployment compensation, medical insurance, life
8 insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of
9 SYCR's and its officers', agents' and employees' work for the CITY. This Agreement does not
10 create the relationship of agent, servant, employee partnership or joint venture between CITY and
11 SYCR.
12 10. SYCR shall maintain the following types of insurance with limits as shown:
13 a) Workers Compensation as required by the laws of the State of California,
14 including Employment Liability with$250,000 limits covering all persons providing
15 service on behalf of SYCR and all risks to such persons under this Agreement.
16 SYCR shall require its Workers Compensation carrier to waive all rights of
17 subrogation against the CITY and its officers and employees and any others for
18 whom services are being provided under this Agreement.
19 b) Comprehensive General and Automobile Liability Insurance coverage to include
20 contractual coverage and automobile coverage for owned, hired and non-owned
21 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
22 bodily injury and property damage.
23 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
24 of naming the CITY as an additional insured,the policy may be endorsed as follows:
25 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
26 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
27 insured, its officers, employees, agents, or subcontractors. All other
28 provisions of this policy are to remain unchanged."
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardQ Recall issues Final 5-3-13.wpd
I SYCR shall furnish certificates of insurance and certified copies of all policies and
2 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
3 to the commencement of performance of services hereunder, which certificates shall provide that
4 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
5 Attorney's Office,and shall maintain such insurance from the time SYCR commences performance
6 of services hereunder until the completion of such services.
7 All policies, with respect to the insurance coverage above required, except for the
8 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
9 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
10 their employees, agents, volunteers and officers as additional named insureds with respect to
11 liabilities arising out of the performance of services hereunder.
12 All policies required above are to be primary and non-contributing with any insurance
13 policies or self-insurance programs carried or administered by the CITY or other parties represented
14 under this Agreement.
15 11. All communications and billings to the CITY are to be directed as follows:
16 City Attorney's Office
CITY OF SAN BERNARDINO
17 Attn: Jolena E. Grider, Sr. Asst. City Attorney
300 North"D" Street
18 San Bernardino, CA 92418
19 12. All professional services to be provided by SYCR pursuant to this Agreement shall
20 be provided by skilled personnel and in a manner consistent with the standards of care,diligence and
21 skill ordinarily exercised by professional consultants in similar fields and circumstances in
22 accordance with sound professional practices. SYCR also warrants that it is familiar with all laws
23 that may affect its performance of this Agreement and shall advise CITY of any changes in any laws
24 that may affect SYCR's performance of this Agreement. SYCR further represents that no CITY
25 employee will provide any services under this Agreement.
26 13. SYCR warrants that it shall perform the services required by this Agreement in
27 compliance with all applicable Federal and California employment laws including, but not limited
28 to,those laws related to minimum hours and wages;occupational health and safety;fair employment
FAGRIDEMOutside Counsel PSA's\SYC&R Agreement for Legal Services regardia Recall issues Final 5-3-13.wpd
I and employment practices;workers'compensation insurance and safety in employment;and all other
2 Federal, State and local laws and ordinances applicable to the services required under this
3 Agreement. SYCR shall indemnify and hold harmless CITY from and against all claims,demands,
4 payments, suits, actions, proceedings, and judgments of every nature and description including
5 reasonable attorneys'fees and costs,presented,brought,or recovered against CITY for,or on account
6 of any liability under any of the above-mentioned laws, arising from or related to SYCR's
7 performance under this Agreement.
8 14. In performing this Agreement, SYCR shall not engage in, nor permit its officers,
9 employees or agents to engage in, discrimination in employment of persons because of their race,
10 religion,color,national origin,ancestry,age,mental or physical disability,medical condition,marital
11 status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the
12 Government Code. Violation of this provision may result in the imposition of penalties referred to
13 in Labor Code, Section 1735.
14 15. SYCR acknowledges that CITY may enter into agreements with other consultants for
15 services similar to the services that are subject to this Agreement or may have its own employees
16 perform services similar to those services contemplated by this Agreement.
17 16. This is a personal service contract, and the duties set forth herein shall not be
18 delegated or assigned to any person or entity without the prior written consent of CITY. SYCR may
19 engage a subcontractor(s)as permitted by law and may employ other personnel to perform services
20 contemplated by this Agreement at SYCR's sole cost and expense.
21 17. During the term of this Agreement,SYCR shall at all times maintain a duty of loyalty
22 and a fiduciary duty as to the CITY and shall not accept payment from or employment with any
23 person or entity which will constitute a conflict of interest with the CITY.
24 18. SYCR shall obtain and maintain during the term of this Agreement, a valid CITY
25 Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code
26 and any and all other licenses,permits, qualifications, insurance and approvals of whatever nature
27 that are legally required of SYCR to practice its profession, skill or business.
28 19. SYCR shall not receive compensation for any services provided outside the Scope
F:\GRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardi4 Recall issues Final 5-3-13.wpd
I of Services unless the CITY, prior to SYCR performing the additional services, approves such
2 additional services in writing. It is specifically understood that oral requests and/or approvals of
3 such additional services or additional compensation shall be barred and are unenforceable.
4 20. Records of SYCR's services relating to this Agreement shall be maintained in
5 accordance with generally recognized accounting principles and shall be made available to CITY for
6 inspection and/or audit at mutually convenient times for a period ofthree(3)years from the Effective
7 Date.
8 21. This Agreement shall commence on the Effective Date and continue through
9 June 30, 2013, unless the Agreement is previously terminated as provided for herein.
10 22. CITY or SYCR may terminate the services provided under Section 1 of this
11 Agreement upon thirty(3 0)days written notice to the other party. In the event of termination,SYCR
12 shall be paid the reasonable value of services rendered to the date of termination.
13 23. In the event of termination of this Agreement, all documents prepared by SYCR in
14 its performance of this Agreement including,but not limited to,finished or unfinished background
15 investigations,shall be delivered to the CITY within ten(10)days of delivery of termination notice
16 to SYCR, at no cost to CITY. Any use of uncompleted documents without specific written
17 authorization fromSYCR shall be at CITY's sole risk and without liability or legal expense to SYCR.
18 24. This Agreement constitutes the entire Agreement between the parties with respect to
19 any matter referenced herein and supersedes any and all other prior writings and oral negotiations.
20 This Agreement may be modified only in writing,and signed by the parties in interest at the time of
21 such modification. The terms of this Agreement shall prevail over any inconsistent provision in any
22 other contract document appurtenant hereto, including exhibits to this Agreement.
23 25. In the event that litigation is brought by any party in connection with this Agreement,
24 the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
25 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its
26 rights or remedies hereunder or the enforcement of any of the terms,conditions,or provisions hereof.
27 The costs, salary and expenses of the City Attorney and members of his office in enforcing this
28 contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this
F:\GRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardii4 Recall issues Final 5-3-13.wpd
I Agreement.
2 26. This Agreement shall be governed by and construed under the laws of the State of
3 California without giving effect to that body of laws pertaining to conflict of laws. In the event of
4 any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and
5 exclusive venue shall be a court of competent jurisdiction located in San Bernardino County,
6 California.
7 27. SYCR shall protect,defend,indemnify and hold harmless CITY and its elected and
8 appointed officials, boards, commissions, officers, attorneys, agents and employees from any and
9 all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses,
10 including reasonable attorney fees, damage to property or injuries to or death of any person or
11 persons or damages of any nature including, but not limited to, all civil claims or workers'
12 compensation claims arising from or in any way related toSYCR's performance under this
13 Agreement, except when caused solely by the CITY's negligence.
14 28. SYCR or its employee may be subject to the provisions of the California Political
15 Reform Act of 1974 (the "Act"), which(1)requires such persons to disclose financial interests that
16 may be materially affected by the work performed under this Agreement, and (2) prohibits such
17 persons from making or participating in making decisions that will have a foreseeable financial affect
18 on such interest.
19 SYCR shall conform to all requirements of the Act. Failure to do so constitutes
20 material breach and is grounds for termination of this Agreement by CITY.
21 29. SYCR shall be responsible for its work and results under this Agreement. SYCR,
22 when requested, shall furnish clarification and/or explanation as may be required by the CITY's
23 representative,regarding any services rendered under this Agreement at no additional cost to CITY.
24 In the event that an error or omission attributable to SYCR occurs, then SYCR shall, at no cost to
25 CITY, provide all other SYCR professional services necessary to rectify and correct the matter to
26 the sole satisfaction of CITY and to participate in any meeting required with regard to the correction.
27 30. SYCR shall not employ any current employee of CITY to perform the work under
28 this Agreement while this Agreement is in effect.
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardi4 Recall issues Final 5-3-13.wpd
1 31. Each party shall bear its own costs and fees incurred in the preparation and
2 negotiation of this Agreement and in the performance of its obligations hereunder except as
3 expressly provided herein.
4 32. This Agreement is entered into for the sole benefit of CITY and SYCR and no other
5 parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall
6 have any right in, under or to this Agreement.
7 33. The delay or failure of either party at any time to require performance or compliance
8 by the other of any of its obligations or agreements shall in no way be deemed a waiver of those
9 rights to require such performance or compliance. No waiver of any provision of this Agreement
10 shall be effective unless in writing and signed by a duly authorized representative of the party against
11 whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any
12 occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other
13 occurrence or event, nor shall any waiver constitute a continuing waiver.
14 34. If any provision of this Agreement is determined by a court of competent jurisdiction
15 to be invalid or unenforceable for any reason, such determination shall not affect the validity or
16 enforceability of the remaining terms and provisions hereof or of the offending provision in any other
17 circumstance,and the remaining provisions of this Agreement shall remain in full force and effect.
18 35. This Agreement may be executed in one or more counterparts, each of which shall
19 be deemed an original. All counterparts shall be construed together and shall constitute one
20 agreement.
21 36. The persons executing this Agreement on behalf of the parties hereto warrant that
22 they are duly authorized to execute this Agreement on behalf of said parties and that by doing so,the
23 parties hereto are formally bound to the provisions of this Agreement.
24
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26
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F:\GRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardiz Recall issues Final 5-3-13.wpd
I PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN
2 BERNARDINO AND STRADLING YOCCA CARLSON& RAUTH, P.C. FOR LEGAL
3 SERVICES RELATING TO RECALL ELECTION ISSUES
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 first written above.
7
8 Dated: , 2013 STRADLING YOCCA CARLSON&RAUTH, P.C.
9
10
By: Thomas P. Clark, Jr.
11
12
13 Dated: , 2013 CITY OF SAN BERNARDINO,
14
15
16 By: Patrick J. Morris, Mayor
17
18
19 Approved as to form:
20
JOLENA E. GRIDER
21 Senior Assistant City Attorney
22
B C
23
24
25
26
27
28
F:\GRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardig Recall issues Final 5-3-13.wpd
2013-86A
1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN
2 BERNARDINO AND STRADLING YOCCA CARLSON & RAUTH, P.C. FOR LEGAL
3 SERVICES RELATING TO RECALL ELECTION ISSUES
4 This Agreement is made and entered into this 6 th day of May,2013 by and between the CITY OF
5 SAN BERNARDINO (hereinafter "CITY") and STRADLING YOCCA CARLSON & RAUTH,
6 P.C. (hereinafter"SYCR").
7 1. SYCR will provide legal advice to the City Clerk on legal issues involving recall
8 election issues. SYCR shall not represent any client in any type of claim against the CITY without
9 prior written approval to do so from the CITY through the City Attorney's Office. All billings and
10 copies of all legal opinions shall be submitted to the Senior Assistant City Attorney.
11 2. SYCR shall be paid at the hourly rates set forth below:
12 Attorneys - $300.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 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 5" day of
16 each succeeding month.
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. Only Tom Clark or another senior attorney approved by the City Council shall
24 provide legal advice contemplated by this Agreement to the City Clerk.
25 7 No client development costs are to be included in billings.
26 8 No continuing education expenses are to be included in billings.
27 9 SYCR, at all times while performing under this Agreement,is and shall be acting at
28 all times as an independent contractor and not as an agent or employee of CITY. SYCR shall secure,
FAGRIDEMutside Counsel PSA's\SYC&R Agreement for Legal Services regardul Recall issues Final 5-3-13.wpd
2013-86A
1 at its expense, and be responsible for any and all payment of wages, benefits and taxes, including,
2 but not limited to, Income Tax, Social Security, State Disability Insurance Compensation,
3 Unemployment Compensation, and other payroll deductions for SYCR and its officers, agents and
4 employees, and all business licenses, if any are required, in connection with the services to be
5 performed hereunder. Neither SYCR nor its officers, agents and employees shall be entitled to
6 receive any benefits which employees of the CITY are entitled to receive and shall not be entitled
7 to worker's compensation insurance, unemployment compensation, medical insurance, life
8 insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of
9 SYCR's and its officers', agents' and employees' work for the CITY. This Agreement does not
10 create the relationship of agent, servant, employee partnership or joint venture between CITY and
11 SYCR.
12 10. SYCR shall maintain the following types of insurance with limits as shown:
13 a) Workers Compensation as required by the laws of the State of California,
14 including Employment Liability with$250,000 limits covering all persons providing
15 service on behalf of SYCR and all risks to such persons under this Agreement.
16 SYCR shall require its Workers Compensation carrier to waive all rights of
17 subrogation against, the CITY and its officers and employees and any others for
18 whom services are being provided under this Agreement.
19 b) Comprehensive General and Automobile Liability Insurance coverage to include
20 contractual coverage and automobile coverage for owned, hired and non-owned
21 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
22 bodily injury and property damage.
23 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
24 of naming the CITY as an additional insured,the policy may be endorsed as follows:
25 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
26 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
27 insured, its officers,employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
28
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardi4 Recall issues Final 5-3-13.wpd
2013-86A
1 SYCR shall furnish certificates of insurance and certified copies of all policies and
2 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
3 to the commencement of performance of services hereunder, which certificates shall provide that
4 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
5 Attorney's Office,and shall maintain such insurance from the time SYCR commences performance
6 of services hereunder until the completion of such services.
7 All policies, with respect to the insurance coverage above required, except for the
8 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
9 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
10 their employees, agents, volunteers and officers as additional named insureds with respect to
11 liabilities arising out of the performance of services hereunder.
12 All policies required above are to be primary and non-contributing with any insurance
13 policies or self-insurance programs carried or administered by the CITY or other parties represented
14 under this Agreement.
15 11. All communications and billings to the CITY are to be directed as follows:
16 City Attorney's Office
CITY OF SAN BERNARDINO
17 Attn: Jolena E. Grider, Sr. Asst. City Attorney
300 North"D" Street
18 San Bernardino, CA 92418
19 12. All professional services to be provided by SYCR pursuant to this Agreement shall
20 be provided by skilled personnel and in a manner consistent with the standards of care,diligence and
21 skill ordinarily exercised by professional consultants in similar fields and circumstances in
22 accordance with sound professional practices. SYCR also warrants that it is familiar with all laws
23 that may affect its performance of this Agreement and shall advise CITY of any changes in any laws
24 that may affect SYCR's performance of this Agreement. SYCR further represents that no CITY
25 employee will provide any services under this Agreement.
26 13. SYCR warrants that it shall perform the services required by this Agreement in
27 compliance with all applicable Federal and California employment laws including,but not limited
28 to,those laws related to minimum hours and wages;occupational health and safety;fair employment
F:\GRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardi-4 Recall issues Final 5-3-13.wpd
2013-86A
1 and employment practices;workers'compensation insurance and safety in employment;and all other
2 Federal, State and local laws and ordinances applicable to the services required under this
3 Agreement. SYCR shall indemnify and hold harmless CITY from and against all claims,demands,
4 payments, suits, actions, proceedings, and judgments of every nature and description including
5 reasonable attorneys'fees and costs,presented,brought,or recovered against CITY for,or on account
6 of any liability under any of the above-mentioned laws, arising from or related to SYCR's
7 performance under this Agreement.
8 14. In performing this Agreement, SYCR shall not engage in, nor permit its officers,
9 employees or agents to engage in, discrimination in employment of persons because of their race,
10 religion,color,national origin,ancestry,age,mental or physical disability,medical condition,marital
11 status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the
12 Government Code. Violation of this provision may result in the imposition of penalties referred to
13 in Labor Code, Section 1735.
14 15. SYCR acknowledges that CITY may enter into agreements with other consultants for
15 1 services similar to the services that are subject to this Agreement or may have its own employees
16 perform services similar to those services contemplated by this Agreement.
17 16. This is a personal service contract, and the duties set forth herein shall not be
18 delegated or assigned to any person or entity without the prior written consent of CITY. SYCR may
19 engage a subcontractor(s)as permitted by law and may employ other personnel to perform services
20 contemplated by this Agreement at SYCR's sole cost and expense.
21 17. During the term of this Agreement,SYCR shall at all times maintain a duty of loyalty
22 and a fiduciary duty as to the CITY and shall not accept payment from or employment with any
23 person or entity which will constitute a conflict of interest with the CITY.
24 1 18. SYCR shall obtain and maintain during the term of this Agreement, a valid CITY
25 Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code
26 and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature
27 that are legally required of SYCR to practice its profession, skill or business.
28 19. SYCR shall not receive compensation for any services provided outside the Scope
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardi4 Recall issues Final 5-3-13.wpd
2013-86A
1 of Services unless the CITY, prior to SYCR performing the additional services, approves such
2 additional services in writing. It is specifically understood that oral requests and/or approvals of
3 such additional services or additional compensation shall be barred and are unenforceable.
4 20. Records of SYCR's services relating to this Agreement shall be maintained in
5 accordance with generally recognized accounting principles and shall be made available to CITY for
6 inspection and/or audit at mutually convenient times for a period of three(3)years from the Effective
7 Date.
8 21. This A reement shall commence on the Effective Date and continue through
9 June 30, 201?, unles he Agreement is previously terminated as provided for herein.
10 22. CITY or SYCR may terminate the services provided under Section 1 of this
11 Agreement upon thirty(30)days written notice to the other party. In the event of termination,SYCR
12 shall be paid the reasonable value of services rendered to the date of termination.
13 23. In the event of termination of this Agreement, all documents prepared by SYCR in
14 its performance of this Agreement including,but not limited to,finished or unfinished background
15 investigations, shall be delivered to the CITY within ten(10)days of delivery of termination notice
16 to SYCR, at no cost to CITY. Any use of uncompleted documents without specific written
17 authorization fromSYCR shall be at CITY's sole risk and without liability or legal expense to SYCR.
18 24. This Agreement constitutes the entire Agreement between the parties with respect to
19 any matter referenced herein and supersedes any and all other prior writings and oral negotiations.
20 This Agreement may be modified only in writing,and signed by the parties in interest at the time of
21 such modification. The terms of this Agreement shall prevail over any inconsistent provision in any
22 other contract document appurtenant hereto, including exhibits to this Agreement.
23 25. In the event that litigation is brought by any party in connection with this Agreement,
24 the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
25 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its
26 rights or remedies hereunder or the enforcement of any of the terms,conditions,or provisions hereof.
27 The costs, salary and expenses of the City Attorney and members of his office in enforcing this
28 contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this
FAGRIDER\Outside Counsel PSNs\SYC&R Agreement for Legal Services regardu4 Recall issues Final 5-3-13.wpd
2013-86A
1 Agreement.
2 26. This Agreement shall be governed by and construed under the laws of the State of
3 California without giving effect to that body of laws pertaining to conflict of laws. In the event of
4 any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and
5 exclusive venue shall be a court of competent jurisdiction located in San Bernardino County,
6 California.
7 27. SYCR shall protect,defend, indemnify and hold harmless CITY and its elected and
8 appointed officials, boards, commissions, officers, attorneys, agents and employees from any and
9 all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses,
10 including reasonable attorney fees, damage to property or injuries to or death of any person or
11 persons or damages of any nature including, but not limited to, all civil claims or workers'
12 compensation claims arising from or in any way related toSYCR's performance under this
13 Agreement, except when caused solely by the CITY's negligence.
14 28. SYCR or its employee may be subject to the provisions of the California Political
15 Reform Act of 1974 (the"Act"), which(1)requires such persons to disclose financial interests that
16 may be materially affected by the work performed under this Agreement, and (2) prohibits such
17 persons from making or participating in making decisions that will have a foreseeable financial affect
18 on such interest.
19 SYCR shall conform to all requirements of the Act. Failure to do so constitutes
20 material breach and is grounds for termination of this Agreement by CITY.
21 29. SYCR shall be responsible for its work and results under this Agreement. SYCR,
22 when requested, shall furnish clarification and/or explanation as may be required by the CITY's
23 representative,regarding any services rendered under this Agreement at no additional cost to CITY.
24 In the event that an error or omission attributable to SYCR occurs, then SYCR shall, at no cost to
25 CITY, provide all other SYCR professional services necessary to rectify and correct the matter to
26 the sole satisfaction of CITY and to participate in any meeting required with regard to the correction.
27 30. SYCR shall not employ any current employee of CITY to perform the work under
28 this Agreement while this Agreement is in effect.
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2013-86A
1 31. Each party shall bear its own costs and fees incurred in the preparation and
2 negotiation of this Agreement and in the performance of its obligations hereunder except as
3 expressly provided herein.
4 32. This Agreement is entered into for the sole benefit of CITY and SYCR and no other
5 parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall
6 have any right in, under or to this Agreement.
7 33. The delay or failure of either party at any time to require performance or compliance
8 by the other of any of its obligations or agreements shall in no way be deemed a waiver of those
9 rights to require such performance or compliance. No waiver of any provision of this Agreement
10 shall be effective unless in writing and signed by a duly authorized representative of the party against
11 whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any
12 occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other
13 occurrence or event, nor shall any waiver constitute a continuing waiver.
14 34. If any provision of this Agreement is determined by a court of competent jurisdiction
15 to be invalid or unenforceable for any reason, such determination shall not affect the validity or
16 enforceability of the remaining terms and provisions hereof or of the offending provision in any other
17 circumstance,and the remaining provisions of this Agreement shall remain in full force and effect.
18 35. This Agreement may be executed in one or more counterparts, each of which shall
19 be deemed an original. All counterparts shall be construed together and shall constitute one
20 agreement.
21 36. The persons executing this Agreement on behalf of the parties hereto warrant that
22 they are duly authorized to execute this Agreement on behalf of said parties and that by doing so,the
23 parties hereto are formally bound to the provisions of this Agreement.
24 ///
25 ///
26 ///
27 HI
28
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2013-86A
1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN
2 BERNARDINO AND STRADLING YOCCA CARLSON & RAUTH,P.C.FOR LEGAL
3 SERVICES RELATING TO RECALL ELECTION ISSUES
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 first written above.
7
8 Dated: ' 2013 STRADLING YOCCA CARLSON & RAUTH,P.C.
9
10
By: Thomas P ark, Jr.
11
12 l
13 Dated: t , 2013 CITY OF SAN BERNARDINO,
14
15
By: Patrick . Morris, or
16
17
18
19 Approved as to form:
20
JOLENA E. GRIDER
21 Senior Assistant City Attorney
22
23
24
25
26
27
28
FAGRIDER\Outside Counsel PSA's\SYC&R Agreement for Legal Services regardiA Recall issues Final 5-3-13.wpd