HomeMy WebLinkAbout08- City Attorney's ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C.ROTH Subject:Resolution of the Mayor and Common Council
Sr.AssistantCity Attorney of the City of San Bernardino Authorizing the Execution
of a Professional Services Agreement Between Timothy
Dept: CITY ATTORNEY Sabo, of Lewis Brisbois Bisgaard& Smith, and the
City of San Bernardino to advise the Planning
Date: March 7, 2011 Commission and the Mayor and Common Council
regarding the proposed revocation/modification of
Conditional Use Permit No. 93-14 to operate a
nightclub at 295 E. Caroline Street, San Bernardino.
Synopsis of Previous Council Action:
February 22,2011—Mayor and Common Council approved in closed session the retention of Timothy Sabo,
of Lewis,Brisbois,Bisgaard&Smith,to advise the Planning Commission and the Mayor and Common
Council regarding the proposed revocation/modification of Conditional Use Permit No. 93-14 to
operate a nightclub at 295 E. Caroline Street, San Bernardino
Recommended motion:
Adopt Resolution
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ignature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No. 00
03-d7-�ati
STAFF REPORT
Council Meeting Date: March 7, 2011
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 28, 2011
AGENDA: Resolution of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between
Timothy Sabo, of Lewis Brisbois Bisgaard & Smith, and the City of San
Bernardino to advise the Planning Commission and the Mayor and Common
Council regarding the proposed revocation/modification of Conditional Use
Permit No. 93-14 to operate a nightclub at 295 E. Caroline Street, San
Bernardino
On February 22, 1011,the Mayor and Common Council approved the retention of Timothy
Sabo, of Lewis Brisbois,Bisgaard& Smith,to advise the Planning Commission and the Mayor and
Common Council regarding the proposed revocation/modification of Conditional Use Permit No.93-
14 to operate a nightclub at 295 E. Caroline Street, San Bernardino
Attached hereto is a Professional Services Agreement providing for the representation,with
a ceiling of$25,000.00 on attorneys' fees and a requirement of regular status reports.
It is requested by the City Attorney that the proposed resolution be adopted,authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
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FAROTH\RESOS\.Sabo PSA StaffRpt.wpd
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN TIMOTHY SABO,OF LEWIS,BRISBOIS,BISGAARD&SMITH
AND THE CITY OF SAN BERNARDINO TO ADVISE THE PLANNING COMMISSION
4 AND THE MAYOR AND COMMON COUNCIL REGARDING THE PROPOSED
REVOCATION/MODIFICATION OF CONDITIONAL USE PERMIT NO. 93-14 TO
5 OPERATE A NIGHTCLUB AT 295 E. CAROLINE STREET, SAN BERNARDINO.
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 of the City of San Bernardino is hereby authorized and directed
10 to execute on behalf of said City a Professional Services Agreement between Timothy Sabo,of Lewis
11 Brisbois Bisgaard& Smith, and the City of San Bernardino to advise the Planning Commission and
12 the Mayor and Common Council regarding the proposed revocation/modification of Conditional Use
13 Permit No. 93-14 to operate a nightclub at 295 E. Caroline Street, San Bernardino, a copy of which
14 is attached hereto marked Exhibit"A" and incorporated herein by reference.
15 SECTION 2. The authorization granted by this Resolution shall expire and be void and
16 of no further effect if the Agreement is not executed by both parties and returned to the Office of the
17 City Clerk within sixty(60) days following the effective date of this Resolution.
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F:\ROTH\RESOS\Sabo PSA Reso.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN TIMOTHY SABO,OF LEWIS,BRISBOIS,BISGAARD&SMITH
AND THE CITY OF SAN BERNARDINO TO ADVISE THE PLANNING COMMISSION
3 AND THE MAYOR AND COMMON COUNCIL REGARDING THE PROPOSED
REVOCATION/MODIFICATION OF CONDITIONAL USE PERMIT NO .93-14 TO
4 OPERATE A NIGHTCLUB AT 295 E. CAROLINE STREET, SAN BERNARDINO.
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a meeting thereof,held on the_day
8 of , 2011,by the following vote, to wit:
9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
10 MARQUES
11 VACANT
12 BRINKER
13 SHORETT
14 KELLEY
15 JOHNSON
16 MC CAMMACK
17
18 Rachel Clark, City Clerk
19
The foregoing Resolution is hereby approved this_day of , 2011.
20
21
22
PATRICK J. MORRIS, Mayor
23 City of San Bernardino
24 Approved as to form:
25 JAMES F. PENMAN,
City Attorney
26
27 By:
28
FAROTH\RESOS\Sabo PSA Resompd
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1 PROFESSIONAL SERVICES AGREEMENT
2
3 1. The CITY OF SAN BERNARDINO(hereinafter"CITY") and TIMOTHY SABO,
4 of LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "SABO") are the parties to this
5 Agreement.
6 2. SABO will advise the Planning Commission and the Mayor and Common Council
7 regarding the proposed revocation/modification of Conditional Use Permit No. 93-14 to operate a
8 nightclub at 295 E.Caroline Street,San Bernardino. SABO shall not represent any client in any type
9 of claim against the CITY without prior written approval to do so from the CITY through the City
10 Attorney's Office.
11 3. SAGO shall be paid at the rate of$160.00 per hour. The amounts expended under
12 this Agreement for attorneys' fees shall not exceed$25,000 without further approval of the Mayor
13 and Common Council.
14 4. Bills shall be submitted at least on a monthly basis and no later than the 5`'day of
15 each succeeding month.
16 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 SABO may include a single charge in an amount not to exceed four percent(4%)of attorneys' fees
19 in lieu of reimbursement for photocopying, telephone charges, and postage.
20 6. If attorneys' fees are charged"portal to portal"(e.g.,from office to court and return),
21 then SABO shall not be entitled to reimbursement for mileage and parking fees.
22 7. SABO shall obtain approval from the CITY to retain expert witnesses, consultants,
23 and other professionals(not including court reporters)for purposes of this Agreement. SABO may,
24 if he chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY
25 on his periodic statement,or he may forward the consultant's bill to the CITY with a request that the
26 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
27 CITY'S Finance Department.
28 8. Only Timothy Sabo of Lewis,Brisbois,Bisgaard&Smith,shall perform the services
FAROTH\Agreements\0A Sabo PSA.wpd I EXHIBIT"A"
I agreed to hereunder.
2 9. No client development costs are to be included in billings.
3 10. No continuing education expenses are to be included in billings.
4 11. Any of the parties may terminate this Agreement at will. SABO will continue to
5 represent the CITY on the terms and conditions in this Agreement until the case and file are
6 transferred to another attorney.
7 18. SABO is an independent contractor as to the CITY.
8 19. SABO shall maintain the following types of insurance with limits as shown:
9 a) Workers Compensation as required by the laws of the State of California,
10 including Employment Liability with$250,000 limits covering all persons providing
11 service on behalf of SABO and all risks to such persons under this Agreement.
12 SABO shall require its Workers Compensation carrier to waive all rights of
13 subrogation against the CITY and its officers and employees and any others for
14 whom services are being provided under this Agreement.
15 b) Comprehensive General and Automobile Liability Insurance coverage to
16 include contractual coverage and automobile coverage for owned, hired and non-
17 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
18 for bodily injury and property damage.
19 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
20 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
21 follows:
22 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
23 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
24 insured,its officers, employees,agents,or subcontractors. All other
provisions of this policy are to remain unchanged."
25
SABO shall furnish certificates of insurance and certified copies of all policies and
26
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
27
to the commencement of performance of services hereunder, which certificates shall provide that
28
FAROTMAgreements\0A Sabo PSA.wpd 2 EXHIBIT"A"
I such insurance shall not be terminated or expire without thirty(30)days written notice to the City
2 Attorney's Office,and shall maintain such insurance from the time SABO commences performance
3 of services hereunder until the completion of such services.
4 All policies, with respect to the insurance coverage above required, except for the
5 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
6 obtain additional endorsements naming the CITY, its employees, agents, commissioners, board
7 members,volunteers and officers as additional named insureds with respect to liabilities arising out
8 of the performance of services hereunder.
9 All policies required above are to be primary and non-contributing with any insurance
10 policies or self-insurance programs carried or administered by the CITY or other parties represented
11 under this Agreement.
12 20. All communications and billings to the CITY are to be directed as follows:
13 City Attorney's Office
CITY OF SAN BERNARDINO
14 300 North"D" Street
San Bernardino, CA 92418
15
16 Dated: ,2011 LEWIS BRISBOIS BISGAARD & SMITH
17
18
By: Timothy Sabo
19
20 Dated: , 2011 CITY OF SAN BERNARDINO
21
22
By: Patrick J. Morris,Mayor
23
24 Approved as to form:
25 JAMES F. PENMAN,
City Attorney
26
By:
27
28
FAROTHWgreements\CiA Sabo PSA.wpd 3 EXHIBIT"A"
1 PROFESSIONAL SERVICES AGREEMENT
2
3 1. The CITY OF SAN BERNARDINO(hereinafter"CITY") and TIMOTHY SABO,
4 of LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "SABO") are the parties to this
5 Agreement.
6 2. SABO will advise the Planning Commission and the Mayor and Common Council
7 regarding the proposed revocation/modification of Conditional Use Permit No. 93-14 to operate a
8 nightclub at 295 E.Caroline Street,San Bernardino. SABO shall not represent any client in any type
9 of claim against the CITY without prior written approval to do so from the CITY through the City
10 Attorney's Office.
11 3. SABO shall be paid at the rate of$160.00 per hour. The amounts expended under
12 this Agreement for attorneys' fees shall not exceed$25,000 without further approval of the Mayor
13 and Common Council.
14 4. Bills shall be submitted at least on a monthly basis and no later than the 5'day of
15 each succeeding month.
16 5. The actual cost for filing fees, telephone charges,photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 SABO may include a single charge in an amount not to exceed four percent(4%)of attorneys' fees
19 in lieu of reimbursement for photocopying,telephone charges, and postage.
20 6. If attorneys' fees are charged"portal to portal"(e.g.,from office to court and return),
21 then SABO shall not be entitled to reimbursement for mileage and parking fees.
22 7. SABO shall obtain approval from the CITY to retain expert witnesses,consultants,
23 and other professionals(not including court reporters)for purposes of this Agreement. SABO may,
24 if he chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY
25 on his periodic statement,or he may forward the consultant's bill to the CITY with a request that the
26 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
27 CITY'S Finance Department.
28 8. Only Timothy Sabo of Lewis,Brisbois,Bisgaard&Smith,shall perform the services
F:\ROTH\Agreements\CiA Sabo PSA.wpd 1
I agreed to hereunder.
2 9. No client development costs are to be included in billings.
10. No continuing education expenses are to be included in billings.
4 11. Any of the parties may terminate this Agreement at will. SABO will continue to
5 represent the CITY on the terms and conditions in this Agreement until the case and file are
6 transferred to another attorney.
7 18. SABO is an independent contractor as to the CITY.
I
8 19. SABO shall maintain the following types of insurance with limits as shown:
9 a) Workers Compensation as required by the laws of the State of California,
10 including Employment Liability with$250,000 limits covering all persons providing
risks to such persons under this Agreement.
III
11 service on behalf of SABO and all
p �'
I
12 SABO shall require its Workers Compensation carrier to waive all rights of
13 subrogation against the CITY and its officers and employees and any others for
14 whom services are being provided under this Agreement.
g p ;�'
15 b) Comprehensive General and Automobile Liability Insurance coverage to
16 include contractual coverage and automobile coverage for owned, hired and non-
(
17 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
18 for bodily injury and property damage.
i
19 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
t
20 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
I
21 follows:
22 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
23 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
24 insured,its officers,employees,agents,or subcontractors. All other
provisions of this policy are to remain unchanged."
25
SABO shall furnish certificates of insurance and certified copies of all policies and
26
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
27
to the commencement of performance of services hereunder,which certificates shall provide that
28
FAROTHWgreements\0A Sabo PSA.wpd 2
I such insurance shall not be terminated or expire without thirty(30)days written notice to the City
2 Attorney's Office,and shall maintain such insurance from the time SABO commences performance
3 of services hereunder until the completion of such services.
4 All policies, with respect to the insurance coverage above required, except for the
5 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall
6 obtain additional endorsements naming the CITY, its employees, agents, commissioners, board
7 members,volunteers and officers as additional named insureds with respect to liabilities arising out
8 of the performance of services hereunder.
9 All policies required above are to be primary and non-contributing with any insurance
10 policies or self-insurance programs carried or administered by the CITY or other parties represented
11 under this Agreement.
12 20. All communications and billings to the CITY are to be directed as follows:
13 City Attorney's Office
CITY OF SAN BERNARDINO
14 300 North"D"Street
San Bernardino, CA 92418
15
16 Dated: , 2011 LEWIS BRISBOIS BISGAARD & SMITH
17
18
By: Timothy Sabo
19
20 Dated: ,2011 CITY OF SAN BERNARDINO
21
22
By: Patrick J. Morris,Mayor
23
24 Approved as to form:
25 JAMES F. PENMAN,
City Attorne
26
By: z,-
27
28
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