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RESOLUTION (ID # 1571) DOC ID: 1571 D
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: James F. Penman M/CC Meeting Date: 02/06/2012
Prepared by: Stephanie Easland, (909) 384-
5355
Dept: City Attorney Ward(s): N/A
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Approving a
Consultant Services Agreement with LEWIS BRISBOI BISGAARD &SMITH, LLP.
Financial Impact:
The cost of the consultant's agreement will be submitted as an enforceable obligation or
administrative cost of the successor agency pursuant to AB xl 26 and will be paid with tax
increment funds.
Motion: Adopt Resolution.
Synopsis of Previous Council Action:
On January 9, 2012,the Mayor and Common Council approved Resolution No. 2012-12,
authorizing the City as the successor agency/entity for the Economic Development Agency
(RDA) effective February 1,2012.
Background:
On December 29, 2011,the California Supreme Court issued its opinion that Redevelopment
Agencies must be dissolved per Assembly Bill xl 26. The Court set the effective date of
dissolution of RDA's as February 1, 2012.
On January 9, 2012,the Mayor and Common Council approved Resolution No. 2012-12
agreeing to serve as the successor agency/entity to the Economic Development Agency(EDA)to
implement the provisions of AB x1 26.
As of February 1,2012,the City of San Bernardino Economic Development Agency was
dissolved by operation of law and the City, acting as the successor agency, is now required to
wind down the business of the former EDA by administering enforceable obligations and
liquidating Agency property.
For years,EDA has been represented by Timothy Sabo of Lewis Brisbois Bisgaard& Smith
LLP. Due to Mr. Sabo and his staffs redevelopment expertise and institutional knowledge of the
former EDA,the City Attorney's Office is requesting the retention of Lewis Brisbois Bisgaard&
Smith LLP, specifically Timothy Sabo, Elizabeth Martyn, Stan Snyder or another senior attorney
approved by the City,to provide legal advice to the City Attorney's on legal issues involving the
dissolution of EDA and the City's role as its successor agency.
Updated:2/2/2012 by Mayra Ochiqui D
Packet Pg. 706
1571
City Attorney Review:
Supporting Documents:
Resolution Approving a Consultant Services Agreement with LEWIS BRISBOI BISGAARD
&SMITH, LLP (DOC)
agreement 1571 (PDF)
Updated:2/2/2012 by Mayra Ochiqui D
Packet Pg.707'
e
1 RESOLUTION NO.
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
3 OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE SAN
BERNARDINO REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF
4 A CONSULTANT SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS,
BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO, ACTING AS THE
5 SUCCESSOR AGENCY OF THE SAN BERNARDINO REDEVELPMENT AGENCY, TO
ADVISE THE CITY ATTORNEY'S OFFICE ON LEGAL ISSUES INVOLVING
6 SUCCESSOR AGENCY MATTERS RESULTING FROM THE IMPLEMENTATION OF
AB X1 26
7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
8 CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY OF THE
SAN BERNARDINO REDEVELOPMENT AGENCY,AS FOLLOWS:
9
10 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
11 directed to execute on behalf of said City, acting as the successor agency of the San
12 Bernardino Redevelopment Agency (RDA), a Consultant Services Agreement between Lewis
13 Brisbois Bisgaard & Smith, LLP and the City of San Bernardino, acting as the successor
14 agency to RDA, to advise the City Attorney's Office on legal issues involving the dissolution
15 of RDA and the City's role as the successor agency of the RDA, a copy of which is attached
16 hereto marked Exhibit "A" and incorporated herein by reference.
17 SECTION 2. The authorization granted by this Resolution shall expire and be of
18 no further effect if the Agreement is not executed by both parties and returned to the Office of
19 the City Clerk within sixty (60) days following the effective date of this Resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
1 BERNARDINO ACTING,AS THE SUCCESSOR AGENCY OF THE SAN BERNARDINO
2 REDEVELOPMENT AGENCY, AUTHORIZING THE EXECUTION OF A
CONSULTANT SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD
3 & SMITH AND THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR
AGENCY OF THE SAN BERNARDINO REDEVELPMENT AGENCY, TO ADVISE THE
4 CITY ATTORNEY'S OFFICE ON LEGAL ISSUES INVOLVING SUCCESSOR AGENCY
MATTERS RESULTING FROM THE IMPLEMENTATION OF AB X126
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
7 Mayor and Common Council of the City of San Bernardino, acting as the successor agency of
8 RDA, at a meeting thereof, held on the_day of 2012 b
> Y
9 the following vote, to wit:
10 Council Members Ayes Nays Abstain Absent
11 MARQUEZ
12 JENKINS
13
BRINKER
14
15 SHORETT
16 KELLEY
17 JOHNSON
18 McCAMMACK
19
20
21 Rachel G. Clark, City Clerk
22 The foregoing resolution is hereby approved this day of 2012
23
24 Patrick J. Morris, Mayor of the
City of San Bernardino, Acting as the Successor
25 Agency of the San Bernardino Redevelopment
26 Approved as to form: Agency
27 JAMES F. PENMAN, City Attorney
28 By: . 1._,
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 THIS AGREEMENT is made and entered into this 6`h day of February,2012 by and between
5 the CITY OF SAN BERNARDINO, acting as the successor agency to the San Bernardino
6 Redevelopment Agency (RDA) and LEWIS BRISBOIS BISGAARD & SMITH LLP
7 ("CONSULTANT").
8 1. LEWIS BRISBOIS BISGAARD&SMITH LLP will provide legal advice to the City
9 1 Attorney's Office on legal issues involving the dissolution of the City's Redevelopment Agency
10 (RDA) and the CITY's role as the successor agency of the RDA. LEWIS BRISBOIS BISGAARD
11 & SMITH LLP shall not represent any client in any type of claim against the CITY without prior
12 written approval to do so from the CITY through the City Attorney's Office.
13 CONSULTANT shall directly advise the City Attorney and/or his designee and shall inform
14 the City Attorney,and/or his designee,in advance of any and all meetings with other CITY officials,
15 employees, commissions, boards or committees, and shall keep the City Attorney informed
16 concerning issues, decisions, etc. arising or occurring at all such meetings and of any other
17 communications with said CITY officials, employees, commissions, boards or committees.
18 2. LEWIS BRISBOIS BISGAARD& SMITH LLP shall be paid at the hourly rates set
19 forth below:
20 Partners - $200.00 per hour;
21 Sr. Associates - $180.00 per hour;
22 Associates - $150.00 per hour; and
23 Law Clerks/Paralegals - $85.00 per hour.
24 The amounts expended under this agreement for attorney fees shall not exceed
25 $25,000, (the "maximum amount") without further approval of the Mayor and Common Council
26 acting as the successor agency to the RDA. CITY agrees to allocate sufficient amounts from tax
27 increment funds as the source of funding for this Agreement and shall allocate an amount equal to
28 ///
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 the maximum amount that may be paid to CONSULTANT"without further approval of the Mayor
5 and Common Council" and shall increase the amount of said allocation each time the maximum
6 amount is increased.
7 3. Bills shall be submitted at least on a monthly basis and no later than the 5" day of
8 each succeeding month.
9 4. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
10 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
11 LEWIS BRISBOIS BISGAARD & SMITH LLP may include a single charge in an amount not to
12 exceed four percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone
13 charges, and postage.
14 5. If attorney fees are charged "portal to portal"(e.g., from office to court and return),
15 then LEWIS BRISBOIS BISGAARD & SMITH LLP shall not be entitled to reimbursement for
16 mileage and parking fees.
17 6. Status reports will be submitted to the CITY through the City Attorney's Office
18 whenever any significant event occurs, and in any event at least quarterly.
19 7. Copies of all opinions and documents, including drafts shall be provided to the City
20 Attorney's Office which may reproduce same and provide copies to other CITY officials.
21 8. Copies of any correspondence and other documents sent to any third parties shall also
22 be provided to the CITY through the City Attorney's Office.
23 9. Only Timothy Sabo, Elizabeth Martyn, or Stan Snyder of LEWIS BRISBOIS
24 BISGAARD&SMITH LLP or another senior attorney approved by the CITY shall provide the legal
25 advice contemplated by this Agreement.
26 10. No client development costs are to be included in billings.
27 11. No continuing education expenses are to be included in billings.
28 12. CONSULTANT,at all times while performing under this Agreement,is and shall be
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 acting at all times as an independent contractor and not as an agent or employee of CITY.
5 CONSULTANT shall secure, at its expense, and be responsible for any and all payment of wages,
6 benefits and taxes, including, but not limited to, Income Tax, Social Security, State Disability
7 Insurance Compensation, Unemployment Compensation, and other payroll deductions for
8 CONSULTANT and its officers, agents, and employees, and all business licenses, if any are
9 required, in connection with the services to be performed hereunder. Neither CONSULTANT nor
10 its officers, agents and employees shall be entitled to receive any benefits which employees of the
11 CITY are entitled to receive and shall not be entitled to workers' compensation insurance,
12 unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays,
13 pension,profit sharing or social security on account of CONSULTANT and its officers',agents' and
14 employees' work for the CITY. This Agreement does not create the relationship of agent, servant,
15 employee partnership or joint venture between the CITY and CONSULTANT.
16 13. LEWIS BRISBOIS BISGAARD& SMITH LLP shall maintain the following types
17 of insurance with limits as shown:
18 a) Workers Compensation as required by the laws of the State of California,
19 including Employment Liability with$250,000 limits covering all persons providing
20 service on behalf of LEWIS BRISBOIS BISGAARD& SMITH LLP and all risks to
21 such persons under this Agreement. LEWIS BRISBOIS BISGAARD&SMITH LLP
22 shall require its Workers Compensation carrier to waive all rights of subrogation
23 against the CITY and its officers and employees and any others for whom services
24 are being provided under this Agreement.
25 b) Comprehensive General and Automobile Liability Insurance coverage to include
26 contractual coverage and automobile coverage for owned, hired and non-owned
27 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
28 bodily injury and property damage.
1 CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
5 of naming the CITY as an additional insured,the policy may be endorsed as follows:
6 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
7 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
8 insured, its officers, employees, agents, or subcontractors. All other
9 provisions of this policy are to remain unchanged."
10 LEWIS BRISBOIS BISGAARD&SMITH LLP shall furnish certificates of insurance
11 and certified copies of all policies and endorsements to the City Attorney's Office evidencing the
12 insurance coverage above required prior to the commencement of performance of services hereunder,
13 which certificates shall provide that such insurance shall not be terminated or expire without thirty
14 (30) days written notice to the City Attorney's Office, and shall maintain such insurance from the
15 time LEWIS BRISBOIS BISGAARD&SMITH LLP commences performance of services hereunder
until the completion of such services.
16
17 All policies, with respect to the insurance coverage above required, except for the
18 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
19 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
20 their employees, agents, volunteers and officers as additional named insureds with respect to
21 liabilities arising out of the performance of services hereunder.
22 All policies required above are to be primary and non-contributing with any insurance
23 policies or self-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
24
25 14. All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
26 CITY OF SAN BERNARDINO
300 North "D" Street
27 San Bernardino, CA 92418
28 ///
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY,AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 15. Professional Practices. All professional services to be provided by CONSULTANT
5 pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with
6 the standards of care, diligence and skill ordinarily exercised by professional consultants in similar
7 fields and circumstances in accordance with sound professional practices. CONSULTANT also
8 warrants that it is familiar with all laws that may affect its performance of this Agreement and shall
9 advise CITY of any changes in any laws that may affect CONSULTANT's performance of this
10 Agreement. CONSULTANT further represents that no CITY employee will provide any services
11 under this Agreement.
12 16. Warrantv. CONSULTANT warrants that it shall perform the services required by this
13 Agreement in compliance with all applicable Federal and California employment laws including,but
14 not limited to,those laws related to minimum hours and wages; occupational health and safety; fair
15 employment and employment practices;workers'compensation insurance and safety in employment;
16 and all other Federal, State and local laws and ordinances applicable to the services required under
17 this Agreement. CONSULTANT shall indemnify and hold harmless CITY from and against all
18 claims, demands, payments, suits, actions, proceedings, and judgments of every nature and
19 description including reasonable attorneys' fees and costs,presented, brought, or recovered against
20 CITY for, or on account of any liability under any of the above-mentioned laws, arising from or
21 related to CONSULTANT's performance under this Agreement.
22 17. Non-discrimination. In performing this Agreement,CONSULTANT shall not engage
23 in, nor permit its officers, employees or agents to engage in, discrimination in employment of
24 persons because of their race, religion, color, national origin, ancestry, age, mental or physical
25 disability,medical condition,marital status,sexual gender or sexual orientation,except as permitted
26 pursuant to Section 12940 of the Government Code. Violation of this provision may result in the
27 imposition of penalties referred to in Labor Code, Section 1735.
28 18. Non-Exclusive Agreement. CONSULTANT acknowledges that CITY may enter into
*46 1 CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY,AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 agreements with other consultants for services similar to the services that are subject to this
5 Agreement or may have its own employees perform services similar to those services contemplated
6 by this Agreement.
7 19. Delectation and Assi nment. This is a personal service contract, and the duties set
8 forth herein shall not be delegated or assigned to any person or entity without the prior written
9 consent of CITY. CONSULTANT may engage a subcontractor(s) as permitted by law and may
10 employ other personnel to perform services contemplated by this Agreement at CONSULTANT's
11 sole cost and expense.
12 20. Conflicts of Interest. During the term of this Agreement, CONSULTANT shall at
13 all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment
14 from or employment with any person or entity which will constitute a conflict of interest with the
15 CITY.
16 21. CITY Business Certificate. CONSULTANT shall obtain and maintain during the
17 term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the
18 City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications,
19 insurance and approvals of whatever nature that are legally required of CONSULTANT to practice
20 its profession, skill or business.
21 22. Additional Services. CONSULTANT shall not receive compensation for any services
22 provided outside the Scope of Services unless the CITY, prior to CONSULTANT performing the
23 additional services, approves such additional services in writing. It is specifically understood that
24 oral requests and/or approvals of such additional services or additional compensation shall be barred
25 and are unenforceable.
26 23. Records and Audits. Records of CONSULTANT's services relating to this
27 Agreement shall be maintained in accordance with generally recognized accounting principles and
28 shall be made available to CITY for inspection and/or audit at mutually convenient times for a period
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 of three (3)years from the Effective Date.
5 24. Term. This Agreement shall be deemed to have commenced on February 1,2012 and
6 continue through June 30, 2012, unless the Agreement is previously terminated as provided for
7 herein.
8 25. Termination. CITY or CONSULTANT may terminate the services provided under
9 Section 1 of this Agreement upon thirty(30) days written notice to the other party. In the event of
10 termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of
11 termination.
12 26. Documents. In the event of termination of this Agreement, all documents prepared
13 by CONSULTANT in its performance of this Agreement including, but not limited to, finished or
14 unfinished background investigations,shall be delivered to the CITY within ten(10)days of delivery
15 of termination notice to CONSULTANT, at no cost to CITY. Any use of uncompleted documents
16 without specific written authorization from CONSULTANT shall be at CITY's sole risk and without
17 liability or legal expense to CONSULTANT.
18 27. Entire Agreement: This Agreement constitutes the entire Agreement between the
19 parties with respect to any matter referenced herein and supersedes any and all other prior writings
20 and oral negotiations. This Agreement may be modified only in writing, and signed by the parties
21 in interest at the time of such modification. The terms of this Agreement shall prevail over any
22 inconsistent provision in any other contract document appurtenant hereto, including exhibits to this
23 Agreement.
24 28. Attome s'Fees: In the event that litigation is brought by any party in connection with
25 this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and
26 expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any
27 of its rights or remedies hereunder or the enforcement of any of the terms, conditions,or provisions
28 hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO, ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY,AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 this Agreement at no additional cost to CITY. In the event that an error or omission attributable to
5 CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other
6 CONSULTANT professional services necessary to rectify and correct the matter to the sole
7 satisfaction of CITY and to participate in any meeting required with regard to the correction.
8 33. Prohibited Employment. CONSULTANT shall not employ any current employee of
9 CITY to perform the work under this Agreement while this Agreement is in effect.
10 34. Costs. Each party shall bear its own costs and fees incurred in the preparation and
11 negotiation of this Agreement and in the performance of its obligations hereunder except as
12 expressly provided herein.
13 11 35. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
14 benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental
15 beneficiaries of this Agreement and no third party shall have any right in,under or to this Agreement.
16 36. Headings Paragraphs and subparagraph headings contained in this Agreement are
17 included solely for convenience and are not intended to modify, explain or to be a full or accurate
18 description of the content thereof and shall not in any way affect the meaning or interpretation of this
19 Agreement.
20 37. Waiver. The delay or failure of either party at any time to require performance or
21 compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver
22 of those rights to require such performance or compliance. No waiver of any provision of this
23 Agreement shall be effective unless in writing and signed by a duly authorized representative of the
24 party against whom enforcement of a waiver is sought. The waiver of any right or remedy with
25 respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect
26 to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
27 38. Severability. If any provision of this Agreement is detennined by a court of
28 competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not
I CONSULTANT SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE
2 SUCCESSOR AGENCY TO THE SAN BERNARDINO
REDEVELOPMENT AGENCY, AND
3 LEWIS BRISBOIS BISGAARD & SMITH LLP
4 affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
5 provision in any other circumstance, and the remaining provisions of this Agreement shall remain
6 in full force and effect.
7 39. Counterparts: This Agreement may be executed in one or more counterparts, each
8 of which shall be deemed an original. All counterparts shall be construed together and shall
9 constitute one agreement.
10 40. Corporate Authority. The persons executing this Agreement on behalf of the parties
11 hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and
12 that by doing so, the parties hereto are formally bound to the provisions of this Agreement.
13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and
14 through their respective authorized officers, as of the date first above written.
CITY OF SAN BERNARDINO, CONSULTANT
15 Acting as the Successor Agency of RDA
16
17 Patrick J. Morris, Mayor Signature
18
Name and Title
19
ATTEST:
20
21 Rachel G. Clark, City Clerk
22
23 APPROVED AS TO FORM:
24 JAMES F. PENMAN,
City Attorney
25
26 ,�i ��f�1�i��•�
27
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I
1 RESOLUTION NO.
t 2 RESOLUTION OF THE MAYOR AND V OF THE CITY N
OF SAN BERNARDINO AUTHORIZING THE CONSULTANT c
3 SERVICES AGREEMENT BETWEEN TIMOTHY SABO, OF LEWIS, BRISBOIS, N
4 BISGAARD & SMITH AND THE CITY OF SAN B ARDINO TO ADVISE THE CITY >
ATTORNEY'S OFFICE ON LEGAL ISSUES VOLVING SUCCESSOR AGENCY
5 MATTERS RESULTING FROM THE IMPLEM TATION OF AB X1 26
6
BE IT RESOLVED BY THEM OR AND COMMON COUNCIL OF THE t=7 CITY OF SAN BERNARDINO AS FOLLPWS: U)
0 °
8 SECTION 1. The Mayor of��e City of San Bernardino is hereby authorized and a
' C7
directed to execute on behalf of said//City a Consultant Services Agreement between Lewis `n
10 m
Brisbois Bisgaard& Smith, LLP aryl the City of San Bernardino to advise the City Attorney's m
11
Office on legal issues involving the dissolution of the City's Economic Development Agency m
12 co
(EDA) and the City's role as�,Ihe successor entity of the EDA, a copy of which is attached y
13
hereto marked Exhibit "A" and incorporated herein by reference.
14 3
SECTION 2. The authorization granted by this Resolution shall expire and be of
15 E
16 no further effect if the'�greement is not executed by both parties and returned to the Office of
the City Clerk withiA/Sixty(60) days following the effective date of this Resolution. a
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Packet Pg.708
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
1
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT
2 SERVICES AGREEMENT BETWEEN TIMOTHY SABO, OF LEWIS, BRISBOIS, Ln
BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO TO ADVISE THE CITY N
ATTORNEY'S OFFICE ON LEGAL ISSUES INVOLVING SUCCESSOR AGENCY c
3 MATTERS RESULTING FROM THE IMPLEMENTATION OF AB XI 26 2
4 '
a.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
6 =
Mayor and Common Council of the City of San Bernardino at a meeting thereof, t=
7 U)
held on the_day of , 2012,by the following vote, to wit: 06
8 °
a
9 Council Members Ayes Nays Abstain Absent
U)
m
10 MARQUEZp
11 m Ln
JENKINS x
m
12
BRINKER
LU
13
14 SHORETT 3
15 KELLEY �
16 JOHNSON a
17
McCAMMACK 2
18
19
20 Rachel G. Clark, City Clerk
0
21
22 The foregoing resolution is hereby approved this day of , 2012
0
23 CL
a
24 Patrick J. Morris, Mayor o
City of San Bernardino
25 N
d
26 Approved as to form:
JAMES F. PENMAN, City Attorney
27 E
28 By.
a
Packet Pg.709
9.A.b
1 CONSULTANT SERVICES AGREEMENT
2
3
THIS AGREEMENT is made and entered into this 6"day of February,2012 by and between o
4
the CITY OF SAN BERNARDINO, a charter city ("CITY") acting as the successor entity to the N
5 E
San Bernardino Economic Development Agency (EDA) and LEWIS BRISBOIS BISGAARD & F'
6
SMITH LLP("CONSULTANT").
7
I. LEWIS BRISBOIS BISGAARD&SMITH LLP will provide legal advice to the City
d
8 L
Attorney's Office on legal issues involving the dissolution of the City's Economic Development a'
9 a
Agency (EDA) and the CITY's role as the successor entity of the EDA. LEWIS BRISBOIS
10 =
BISGAARD & SMITH LLP shall not represent any client in any type of claim against the CITY 'o
11 a
without prior written approval to do so from the CITY through the City Attorney's Office. a
I2 �
CONSULTANT shall directly advise the City Attorney and/or his designee and shall inform 2
13 _
the City Attorney,and/or his designee,in advance of any and all meetings with other CITY officials, c
14
employees, commissions, boards or committees, and shall keep the City Attorney informed
15 ti
Ln
16 concerning issues, decisions, etc. arising or occurring at all such meetings and of any other
communications with said CITY officials,employees, commissions, boards or committees. o
17
2. LEWIS BRISBOIS BISGAARD&SMITH LLP shall be paid at the hourly rates set
s 18
forth below;
19 ti
LO
Partners-$200.00 per hour;
20
Sr. Associates- $180.00 per hour; E
21
Associates-$150.00 per hour; and
22
Law Clerks/Paralegals- $85.00 per hour. d
23 E
The amounts expended under this agreement for attorney fees shall not exceed m
24
$25,000, (the "maximum amount") without further approval of the Mayor and Common Council a
25
26 acting as the successor entity to the EDA. CITY agrees to allocate sufficient amounts from tax
27 increment funds as the source of funding for this Agreement and shall allocate an amount equal to
28 the maximum amount that may be paid to CONSULTANT"without further approval of the Mayor
F:IPENMAMLBBS.ConsultSvcAg.wpd I
Packet Pg.710
1 .
9.A.b
1 and Common Council" and shall increase the amount of said allocation each time the maximum
2 amount is increased.
3 3. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
4 each succeeding month.
Cn
5 4. The actual cost for filing fees telephone charges, photocopying, postage, lodging,g, E
P
6 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
3
7 LEWIS BRISBOIS BISGAARD & SMITH LLP may include a single charge in an amount not to C
8 exceed four percent 4% of attorney fees in lieu of reimbursement for photocopying,p ( } y p pying, telephone �
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9 charges,and postage. Q
10 5. If attorney fees are charged " 0
g portal to portal (e.g., from office to court and return}, °
11 then LEWIS BRISBOIS BISGAARD & SMITH LLP shall not be entitled to reimbursement for °
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12 mileage and parking fees. Q
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13 6. Status reports will be submitted to the CITY through the City Attorney's Office
10 0
14 whenever any significant event occurs,and in any event at least quarterly.
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15 7. Copies of all opinions and documents,including drafts shall be provided to the City
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16 Attorney's Office which may reproduce same and provide copies to other CITY officials.
17 8. Copies of any correspondence and other documents sent to any third parties shall also
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18 be provided to the CITY through the City Attorney's Office.
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19 9. Only Timothy Sabo, Elizabeth Martyn, or Stan Snyder of LEWIS BRISBOIS LO
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20 BISGAARD&SMITH LLP or another senior attorney approved by the CITY shall provide the legal �
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21 advice contemplated by this Agreement.
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22 10. No client development costs are to be included in billings. f6
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23 11. No continuing education expenses are to be included in billings. E
24 12. CONSULTANT,at all times while performing under this Agreement,is and shall be
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25 acting at all times as an independent contractor and not as an agent or employee of CITY.
26 CONSULTANT shall secure, at its expense,and be responsible for any and all payment of wages,
27 benefits and taxes, including, but not limited to, Income Tax, Social Security, State Disability
28 Insurance Compensation, Unemployment Compensation, and other payroll deductions for
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1 CONSULTANT and its officers, agents, and employees, and all business licenses, of any are
2 required,in connection with the services to be performed hereunder. Neither CONSULTANT nor
3 its officers, agents and employees shall be entitled to receive any benefits which employees of the
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4 CITY are entitled to receive and shall not be entitled to workers' compensation insurance,
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5 unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays,
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6 pension,profit sharing or social security on account of CONSULTANT and its officers',agents'and 3
7 employees' work for the CITY. This Agreement does not create the relationship of agent, servant,
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8 employee partnership or joint venture between the CITY and CONSULTANT. L
9 13, LEWIS BRISBOIS BISGAARD&SMITH LLP shall maintain the following types c
10 of insurance with limits as shown:
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I 1 a) Workers Compensation as required by the laws of the State of California, Q
12 including Employment Liability with$250,000 limits covering all persons providing o
13 service on behalf of LEWIS BRISBOIS BISGAARD&SMITH LLP and all risks to
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14 such persons under this Agreement. LEWIS BRISBOIS BISGAARD&SMITH LLP
15 shall require its Workers Compensation carrier to waive all rights of subrogation uti-,
16 against the CITY and its officers and employees and any others for whom services
17 are being provided under this Agreement. 00
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3 18 b) Comprehensive General and Automobile Liability Insurance coverage to include
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19 contractual coverage and automobile coverage for owned, hired and non-owned Ln
20 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
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! 21 bodily injury and property damage. d
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22 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
23 of naming the CITY as an additional insured,the policy may be endorsed as follows: E
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{ 24 "Insurance coverage afforded by this policy shall also apply a
to the liability assumed by the Insured under the Agreement with the
25 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
26 insured,its officers, employees, agents,or subcontractors. All other
6 provisions of this policy are to remain unchanged."
27
LEWIS BRISBOIS BISGAARD&SMITH LLP shall furnish certificates of insurance
28
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I and certified copies of all policies and endorsements to the City Attorney's Office evidencing the
2 insurance coverage above required prior to the commencement of performance of services hereunder,
3 which certificates shall provide that such insurance shall not be terminated or expire without thirty
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4 (30) days written notice to the City Attorney's Office, and shall maintain such insurance from the
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5 time LEWIS BRISBOIS BISGAARD&SMITH LLP commences performance of services hereunder
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0 6 until the completion of such services. w
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7 All policies, with respect to the insurance coverage above required, except for the m
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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 =
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11 liabilities arising out of the performance of services hereunder. 0-
12 All policies required above are to he primary and non-contributing with any insurance o
13 policies or self-insurance programs carried or administered by the CITY or other parties represented o
14 under this Agreement.
15 14. All communications and billings to the CITY are to be directed as follows:
16 City Attorney's Office
CITY OF SAN BERNARDINO c
17 300 North"D" Street
San Bernardino, CA 92418 >
18
15. Professional Practices. All professional services to be provided by CONSULTANT r
19 r-
pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with
20 _
the standards of care,diligence and skill ordinarily exercised by professional consultants in similar E
21
fields and circumstances in accordance with sound professional practices. CONSULTANT also
22
23 warrants that it is familiar with all laws that may affect its performance of this Agreement and shall
advise CITY of any changes in any laws that may affect CONSULTANT's performance of this
24
25 Agreement. CONSULTANT further represents that no CITY employee will provide any services a
under this Agreement.
26
27 16. Warranty. CONSULTANT warrants that it shall perform the services required by this
28 Agreement in compliance with all applicable Federal and California employment laws including,but
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1 not limited to,those laws related to minimum hours and wages;occupational health and safety;fair
2 employment and employment practices;workers'compensation insurance and safety in employment;
3 and all other Federal, State and local laws and ordinances applicable to the services required under
4 this Agreement. CONSULTANT shall indemnify and hold harmless CITY from and against all .0
5 claims, demands a ments, suits, actions
p y , proceedings, and judgments of every nature and E
6 description including reasonable attorneys'fees and costs,presented,brought,or recovered against
3
7 i CITY for, or on account of any liability under any of the above-mentioned laws, arising from or
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8 related to CONSULTANT's performance under this Agreement.
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9 17. Non-discrimination. In performing this Agreement,CONSULTANT shall not engage =
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10 i in, nor permit its officers, employees or agents to engage in, discrimination in employment of c
I I persons because of their race, religion, color, national origin, ancestry, age, mental or physical
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12 disability,medical condition,marital status,sexual gender or sexual orientation,except as permitted c
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13 pursuant to Section 12940 of the Government Code. Violation of this provision may result in the 0
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14 imposition of penalties referred to in Labor Code, Section 1735,
15 18. Non-Exclusive A reement. CONSULTANT acknowledges that CITY may enter into
16 agreements with other consultants for services similar to the services that are subject to this
17 Agreement or may have its own employees perform services similar to those services contemplated 2
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18 by this Agreement.
19 19. Delegation and Assignment. This is a personal service contract,and the duties set ,
20 forth herein shall not be delegated or assigned to any person or entity without the prior written
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21 consent of CITY. CONSULTANT may engage a subcontractor(s) as permitted by law and may m
22 employ other personnel to perform services contemplated by this Agreement at CONSULTANT's
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23 sole cost and expense. E
24 20. Conflicts of Interest. During the term of this Agreement, CONSULTANT shall at
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25 all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment
26 from or employment with any person or entity which will constitute a conflict of interest with the
27 CITY.
28 ///
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9.A.b
1 21. CITY Business Certificate. CONSULTANT shall obtain and maintain during the
2 term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the
3 City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications,
4 insurance and approvals of whatever nature that are legally required of CONSULTANT to practice 0
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5 its profession, skill or business. E
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6 22. Additional Services. CONSULTANT shall not receive compensation for any services
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E 7 provided outside the Scope of Services unless the CITY,prior to CONSULTANT performing the
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8 additional services, approves such additional services in writing. It is specifically understood that
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9 oral requests and/or approvals of such additional services or additional compensation shall be barred =
10 and are unenforceable. _
11 23. Records and Audits. Records of CONSULTANT's services relating to this Q,
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12 Agreement shall be maintained in accordance with generally recognized accounting principles and c
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13 shall be made available to CITY for inspection and/or audit at mutually convenient times for a period 2
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14 of three(3)years from the Effective Date.
15 24. Term. This Agreement shall be deemed to have commenced on February 1,2012 and ,
16 continue through June 30, 2012, unless the Agreement is previously terminated as provided for
17 herein, o
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18 25. Termination. CITY or CONSULTANT may terminate the services provided under W
19 Section 1 of this Agreement upon thirty(30)days written notice to the other party. In the event of ,
20 termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of
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21 termination.
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22 26. Documents. In the event of termination of this Agreement,all documents prepared
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23 by CONSULTANT in its performance of this Agreement including, but not limited to,finished or E
24 unfinished background investigations,shall be delivered to the CITY within ten(10)days of delivery Q
25 of termination notice to CONSULTANT,at no cost to CITY. Any use of uncompleted documents
26 without specific written authorization from CONSULTANT shall be at CITY's sole risk and without
27 liability or legal expense to CONSULTANT.
28 ///
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1 27. Entire Agreement: This Agreement constitutes the entire Agreement between the
2 parties with respect to any matter referenced herein and supersedes any and all other prior writings
3 and oral negotiations. This Agreement may be modified only in writing, and signed by the parties
4 in interest at the time of such modification. The terms of this Agreement shall prevail over any
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5 inconsistent provision in any other contract document appurtenant hereto,including exhibits to this E
6 Agreement.
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7 28. Attorneys'Fees: In the event that litigation is brought by any party in connection with
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8 this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and (D
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9 expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any
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10 of its rights or remedies hereunder or the enforcement of any of the terms,conditions,or provisions r-
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I 1 hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing Q,
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12 this contract on behalf of the CITY shall be considered as "attorneys'fees" for the purposes of this o
13 Agreement.
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14 29. Governing Law. This Agreement shall be governed by and construed under the laws a0'
15 of the State of California without giving effect to that body of laws pertaining to conflict of laws.
16 In the event of any legal action to enforce or interpret this Agreement,the parties hereto agree that
17 the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino 00
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18 County, California. tY
19 30. Indemnification and Hold Harmless. CONSULTANT shall protect, defend, Ln
20 indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, a
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21 officers attorneys, agents and employees from an and all claims losses demands suits 0
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22 administrative actions,penalties,liabilities and expenses,including reasonable attorney fees,damage
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23 to property or injuries to or death of any person or persons or damages of any nature including, but E
24 not limited to, all civil claims or workers'compensation claims arising from or in any way related
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25 to CONSULTANT's performance under this Agreement,except when caused solely by the CITY's
26 negligence.
27 31 Conflict of Interest Disclosure: CONSULTANT or its employee may be subject to
28 the provisions of the California Political Reform Act of 1974 (the"Act"), which(1)requires such
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9.A.b
1
1 persons to disclose financial interests that may be materially affected by the work performed under
2 this Agreement,and(2)prohibits such persons from making or participating in making decisions that
3 will have a foreseeable financial affect on such interest.
f 4 CONSULTANT shall conform to all requirements of the Act. Failure to do so
5 constitutes a material breach and is grounds for termination of the Agreement by CITY. E
6 32. Responsibility for Errors. CONSULTANT shall be responsible for its work and
3
7 results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or
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8 explanation as may be required by the CITY's representative,regarding any services rendered under m
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9 this Agreement at no additional cost to CITY. In the event that an error or omission attributable to a
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10 CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other c
professional services necessary °
11 CONSULTANT
p ary to rectify and correct the matter to the sole Q,
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12 satisfaction of CITY and to participate in any meeting required with regard to the correction. c
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13 33. Prohibited Employment. CONSULTANT shall not employ any current employee of —'
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14 CITY to perform the work under this Agreement while this Agreement is in effect.
15 34. Costs. Each party shall bear its own costs and fees incurred in the preparation and
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16 negotiation of this Agreement and in the performance of its obligations hereunder except as
17 expressly provided herein. o
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18 35. No Third Party BenefciM Rights. This Agreement is entered into for the sole X
19 benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental
20 beneficiaries of this Agreement and no third party shall have any right in,under or to this Agreement. (D
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21 36. Headings Paragraphs and subparagraph headings contained in this Agreement are d
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22 included solely for convenience and are not intended to modify, explain or to be a full or accurate :.:
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23 description of the content thereof and shall not in any way affect the meaning or interpretation of this E
24 Agreement. 2
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25 37. Waiver. The delay or failure of either party at any time to require performance or
26 compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver
27 of those rights to require such performance or compliance. No waiver of any provision of this
28 Agreement shall be effective unless in writing and signed by a duly authorized representative of the
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I party against whom enforcement of a waiver is sought. The waiver of any right or remedy with
2 respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect
3 to any other occurrence or event,nor shall any waiver constitute a continuing waiver.
4 38. Severability. If any provision of this Agreement is determined by a court of M
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5 competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not E
6 affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
3
7 provision in any other circumstance, and the remaining provisions of this Agreement shall remain =
8 in full force and effect. d
9 39. Counterparts: This Agreement may be executed in one or more counterparts,each
10 of which shall be deemed an original. All counterparts shall be construed together and shall c
k I 1 constitute one agreement. o
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12 40. Corporate Authority.The persons executing this Agreement on behalf of the parties
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13 hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and 2
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14 that by doing so,the parties hereto are formally bound to the provisions of this Agreement.
15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and
16 through their respective authorized officers, as of the date first above written.
CITY OF SAN BERNARDINO, CONSULTANT
17 A municipal corporation o
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19 Patrick J. Morris, Mayor Signature
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Name and Title E
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ATTEST:
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23 Rachel G. Clark, City Clerk 0
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25 APPROVED AS TO FORM:
26 JAMES F. PENMAN,
City Attorney
27
28
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