HomeMy WebLinkAboutR40- City Attorney ,rITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman Subject: Resolutions of Community Development Commission
and Mayor and Common Council to execute Agreement
Dept: CITY ATTORNEY with each other for the City Attorney to provide legal
ORIGINAL Services to the Community Development Commission
Date: June 30, 1998 and the Economic Development Agency
Synopsis of Previous Council action:
Resolution No. 95-214
Recommended motion:
Adopt Resolutions.
su,
Signatur
Contact person: Huston T. Carlyle, Jr. Phone: 5055
Supporting data attached: Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
7 �v98
75-0262 Agenda Item No. R q +Q
STAFF REPORT
Council Meeting Date: July 6. 1998
TO: Mayor and Common Council, Chairperson and Community
Development Commission
FROM: James F. Penman, City Attorney
DATE: June 30, 1998
AGENDA ITEM: Resolutions of Community Development Commission and Mayor
and Common Council to execute agreement with each other for
the City Attorney to provide legal services to the Community
Development Commission and the Economic Development
Agency
The proposed Agreement between the Community Development Commission and
the City of San Bernardino, and the accompanying Resolutions, implement the budget
decision made by the Mayor and Common Council.
Paragraph 2(d)(1) reflects the amount of$136,400.00 based upon past Mayor and
Common Council action.
Paragraph 2(d)(3) reflects the lowest rate now being charged the City and/or EDA
by outside law firms.
The Agreement is for a four year term, commencing July 1, 1998, with one year
renewal periods thereafter.
The Agreement may be terminated by either party at any time upon thirty (30) days'
written notice.
i• Entered into Record at /
CouncillCmyDevCms Mtn: 7 / y P
C I T Y O F S A N B E R N A R I N 0
by
Interoffice Memorandw%ge daItem R '1�
TO: Tom Minor, Mayor
City Clerk/CDC Secy
FROM: Dennis A. Barlow, Senior Assistant CityCkjtdcSMd)jrnardioo
DATE: August 31, 1993
RE: Legal Services For Economic Development Agency
I am in receipt of a copy of the memorandum addressed to you
from Kenneth J. Henderson, Executive Director of the Development
Department, dated August 20, 1993. I find it interesting that
although this memorandum relates to services by our office that our
office was not provided a courtesy copy by Mr. Henderson. I also
understand that blind copies were sent to all Councilmembers.
At the outset, I must note that at no time has the Agency
expressed any dissatisfaction with the quality or quantity of the
legal work performed by the City Attorney' s Office. In fact, on
several occasions I have been commended and thanked for my work by
the Agency Administrator, Mr. Timothy C. Steinhaus, both
individually and in front of the other managers at the weekly
management meeting.
Mr. Henderson' s comments reflect a serious misunderstanding of
the agreement for legal services between the City and the Economic
Development Agency. This Agreement dated December 19, 1991,
provides that legal services will be provided to the Agency by the
City Attorney' s office. The Agreement acts much as a legal
retainer, providing that legal services will be available when
needed. There is no limitation that such services may only be
provided by the Senior Assistant City Attorney. In fact services
are consistently provided by many members of the City Attorney' s
staff . For instance Diane Roth often provides advice in the areas
of Personnel and Fair Labor Standards Act Compliance, Frank Rhemrev
provides Default Collection and Foreclosure services, and advice on
bankruptcy and matters relating to public works, especially in
regard to the new police facility, Henry Empefto provides primary
backup in my absence for all redevelopment matters, and he, Richard
Morillo and Frank Rhemrev will, from time to time, attend the
meetings of the Redevelopment Committee when I am unable to do so.
In addition, the City Attorney himself often provides advice both
formally and informally to Commission members. The measure of the
'payment for the services rendered is 90% of the salary and benefits
of the Senior Assistant City Attorney and of a Legal Secretary II .
Although the primary assignment for Economic Development Agency
DAB/me [Minor.Memo]
R-40
To Tom Minor, Mayor
Date: August 31, 1993
Re Legal Services for Economic Development Agency
Page 2
activities is given to these two individuals, they are not, and
never have been, the only persons )providing such services, nor has
it been intended that 90% of their time would be so allocated. For
the past 6 years and even before that time, the attorneys in this
position have provided a variety of legal services to the City as
well as providing legal advice and assistance to the Economic
Development Agency and the Redevelopment Agency before it.
Since Mr. Henderson attaches an invoice from Sabo and Green
as an example, I should note that the Agreement for legal services
requires that the City Attorney' s Office review and approve all
requests for outside legal services. This provision has been
almost totally ignored by the Agency despite periodic reminders by
this office ( see attached) . I note that Mr. Sabo has been involved
in the new police facility, the government block, a Notice of
Completion for San Bernardino Mitsubishi, Metrolink, Cliff Carel,
and other projects without any prior contact with this office.
Very often I will run into Mr. Sabo in the EDA Office working on
projects unknown to this office. For instance, just this week I
received a call from Charles Green of that office regarding a
bankruptcy matter they had been asked to work on which was the same
issue we had been asked to work on. This is not to say that Mr.
Sabo does not do an adequate job or that we wouldn' t have suggested
that such matters be referred to him if asked. But the fact is
that the Agreement has not been complied with.
With reference to the litigation costs for the case in
question, when an entity is sued it must provide a defense even if
it believes there is no liability. We have made an administrative
decision to divide the costs incurred on the pending cases which
name both the City and the Agency 50/50 because there is no other
efficient and appropriate way to divide such costs. This decision
does not relate in any way to our analysis of apportionment of
responsibility. To try to apportion cost based on our analysis of
relative fault would only be speculation on our part in most cases
and then would require a financial accounting when the case was
finally resolved. This .would seem to be a cumbersome process.
This billing process is consistent with how we have billed all the
other cases involving both the City and the Agency, for example,
San Bernardino' s Hotel/Motel Owners ' Association, Florence, Foo,
Patel , Dykes/Rampello, Nu-Tech, Jenkins, Villareal, Malaro and
Goodnow. The only difference in the case at hand is the amount is
significantly greater. It really makes no difference to the City
Attorney' s office if the Mayor and Council desire to waive all or
a part of the costs billed, we are merely proceeding pursuant to
the approved agreement. No part of the legal fees billed are
DAB/me [Minor.Memo]
To Tom Minor, Mayor
Date: August 31, 1993
Re Legal Services for Economic Development Agency
Page 3
credited to the City Attorney' s budget, but instead go into the
City' s general fund.
V DENNIS A. cOARLOW
cc: All Councilmembers
Kenneth J. Henderson, Executive Director
Timothy C. Steinhaus, Agency Administrator
Rachel Clark, City Clerk
David Kennedy, City Treasurer
DAB/ma [Minor.Memo]
C I T Y OF S A N B E R N A R D I N 0
INTEROFFICE MEMORANDUM
TO: Timothy C. Steinhaus, Agency Administrator
FROM: Dennis A. Barlow, Sr. Asst. City Attorney
DATE: January 20, 1993
RE: Use of Agency Counsel
Two recent events have raised a concern that I feel I need to
share with you.
At the meeting of the Redevelopment Committee held on
Thursday, January 14, it was disclosed in passing that a project
under discussion had been fully discussed with another Commission
Member not on the Committee. A discussion of a matter with four of
the Commission Members constitutes a meeting under the Ralph M.
Brown Act (Government Code 554950 et seq. ) . Such discussion
without notice, ..agenda, right of the public to attend and all the
other requirements of the act would be a violation of the Act.
Violation by a member of the legislative body is a misdemeanor
( Government Code §54959 ) .
Such a situation should have been discussed with this office
beforehand or at least raised at the beginning of the meeting so
appropriate steps could be taken to avoid a violation. As it was,
the disclosure was only made in response to a question from the
chair and it appeared that it would not have been made otherwise.
This puts the Commission Members in a very difficult position.
The second event had to do with developing a loan agreement
with Dukes-Dukes by using outside counsel with no contact with this
office. Certainly projects arise with which outside counsel is
more familiar or has more expertise, but the Commission has on
several occasions directed that all use of outside counsel go
through this office. In this particular instance a conflict of
interest question arose and this office could not provide the
requested evaluation because we had neither seen nor even heard of
the proposed agreement .
I know that staff sometimes find themselves in situations not
of their own making, and I don' t know if these two events are
indicative of the ongoing practice of the Agency, but I would
encourage closer contact with this office as contemplated by
previous Commission direction.
✓DENNIS A. `ffARLOW
DAB:kfm(AGENCYC0.P1MI
1 RESOLUTION NO. _
• 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAM BERNARDINO AUTHORIZING THE CHAIRPERSON TO EXECUTE AN
3 AGREEMENT FOR THE CITY ATTORNEY TO PROVIDE LEGAL SERVICES TO THE
COMMUNITY DEVELOPMENT COMMISSION AND ECONOMIC DEVELOPMENT
4 AGENCY.
5 BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT CON I IISSION OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
5
SECTION I. The Chairperson is hereby authorized and directed to execute an Agreement
7
with the City of San Bernardino for the City Attorney to provide legal services to the Commission
8
and the Economic Development Agency. A copy of said Agreement is attached hereto as Exhibit
9
"A."
10
11 SECTION 2. The authorization to execute the above-referenced Agreement is rescinded
12 if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this
Resolution.
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HTC/js[LEGAURES] 1 R 7
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
• OF SAN BERNARDINO AUTHORIZING THE CHAIRPERSON TO EXECUTE AN
2 AGREEMENT FOR THE CITY ATTORNEY TO PROVIDE LEGAL SERVICES TO THE
COMMUNITY DEVELOPMENT COMMISSION AND ECONOMIC DEVELOPMENT
3 AGENCY.
4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Community
5 Development Commission of the City of San Bernardino at a meeting thereof, held
6 on the day of , 1998 by the following vote, to wit:
7
8 COMMISSION MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 LIEN
11 ARIAS
12 SCHNETZ
13 DEVLIN
14 ANDERSON
• 15 MILLER
16
17 Secretary
18
The foregoing Resolution is hereby approved this day of
19 1998.
20
21 JUDITH VALLES, Chairperson of the
Community Development Commission
22 of the City of San Bernardino
City of San Bernardino
23
24 Approved as to form and
legal content:
25
JAMES F. PENMAN,
26 City Atto y
27 �� �1
By: �
28 Agency Counsel
HTC/js[LEGAL2.RE51 2
COPY
l RESOLUTION NO.
• 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR THE
3 CITY ATTORNEY TO PROVIDE LEGAL SERVICES TO THE COMMUNITY
DEVELOPMENT COMMISSION AND ECONOMIC DEVELOPMENT AGENCY.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor is hereby authorized and directed to execute an Agreement with
8 the Community Development Commission for the City Attorney to provide legal services to the
9 Commission and the Economic Development Agency. A copy of said Agreement is attached
10 hereto as Exhibit "A."
1 I SECTION 2. The authorization to execute the above-referenced Agreement is rescinded
12 if the parties to the Agreement fail to execute it within the sixty (60) days of the passage of this
13 Resolution.
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HTC/js II.egaJSemces.RES1 1
R40 B
1
• RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR THE
CITY ATTORNEY TO PROVIDE LEGAL SERVICES TO THE COMMUNITY
3 DEVELOPMENT COMMISSION AND ECONOMIC DEVELOPMENT AGENCY.
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
6 thereof, held on the day of 1998, by the following vote, to
7 wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 LIEN
11 ARIAS
12 SCHNETZ
13 DEVLIN
14 ANDERSON
• 15 MILLER
16
17 CITY CLERK
18
19 1998. The foregoing Resolution is hereby approved this day of
20
21
JUDITH VALLES, Mayor
22 City of San Bernardino
23
Approved as to form and
24 legal content:
25 JAMES F. PENMAN,
City Attorney
26
;1 n
28
HTC/js[LegalServices.RES]
1 A G R E E M E N T
• 2 THIS AGREEMENT is made and entered this day of
3 , 1998 , by and between the Community Development
4 Commission of the City of San Bernardino, on behalf of the
5 Economic Development Agency of the City of San Bernardino, a
6 public agency of the State of California, hereinafter referred to
7 as the "Agency" , and the City of San Bernardino, a charter city,
8 hereinafter referred to as "City" .
9 The parties do hereby agree :
10 1 . Recitals .
11 (a) Agency needs full-time attorney service to render
12 legal advice, assist in drafting documents, provide review and
13 revision of documents, agreements and resolutions, and participate
• 14 in negotiations with developers and others .
15 (b) City, through its City Attorney, is prepared to
16 provide services as Agency Counsel for Agency and its governing
17 body, the Community Development Commission.
18 2 . Implementation.
19 (a) Services . Agency agrees to retain and City agrees
20 to provide, the services of the City Attorney, as Agency Counsel ,
21 who shall perform or have performed all the necessary services in
22 connection with projects undertaken by the Agency, or being
23 considered by the Agency, and shall render in a satisfactory and
24 proper manner as determined by the Agency all legal services
25 necessary and desired, and shall confer when necessary with the
26 Agency and any state or federal agency on legal matters; shall
• 27 perform all work of a legal nature necessary and required by the
28 Agency with necessary legal advice for the proper conduct of all
1
1 projects undertaken by the Agency. The parties contemplate that
• 2 the City Attorney will assign sufficient attorneys to perform the
3 foregoing legal services . Such legal services for the Agency
4 shall be given priority. Both parties contemplate continued need
5 for the Agency to utilize services of outside counsel,
6 particularly in bond-related matters . The City Attorney shall
7 determine when the services of outside counsel are required and
8 arrange for the employment of same and Agency staff shall consult
9 with the City Attorney prior to the employment of outside counsel
10 and prior to the assignment of matters to such counsel . All
11 outside counsel shall keep the City Attorney informed of their
12 work and provide copies of any and all correspondence with Agency
13 to City Attorney. Under the general direction of the Commission,
• 14 City Attorney shall be responsible for directing and coordinating
15 services performed by outside counsel , shall work with outside
16 Counsel retained and shall review all billings from outside
17 counsel . In addition, in connection with providing the foregoing
18 legal services, the City Attorney' s .office will also provide
19 sufficient secretarial support services .
20 (b) Data to be Furnished City. The following data
21 will be furnished by Agency at the time work assignments covered
22 by this contract are made to the City: All records and information
23 pertaining to legal requirements of the Agency, including any
24 back-up materials, applicable regulations, ' correspondence,
25 preliminary drafts of agreements, if any, and any other materials
26 relating to the project in the possession of the Agency. .
• 27 (c) Time of Performance . The services of the City
28 Attorney' s office under this agreement are to commence as of July
2
1 1, 1998 , and shall be undertaken and completed in such sequence as
• 2 to assure their expeditious completion in light of the purpose of
3 this agreement . This agreement shall be in effect until June 30 ,
4 2002 , and thereafter shall continue for consecutive periods of one
5 year unless sooner terminated by the action of either Agency or
6 City as herein provided.
7 (d) Compensation.
8 (1) Attorney Services . Agency will pay City a
9 retainer of $136 , 400 . 00 (One Hundred Thirty Six Thousand Four
10 Hundred Dollars) per year in full payment for the services of the
11 City Attorney' s office under this agreement except as otherwise
12 provided herein. City shall provide the Agency an itemization of
13 specific services rendered, and the account category representing
• 14 the project or activity to which services are to be charged. In
15 addition to the compensation identified herein, Agency will
16 reimburse City for travel and subsistence expenses away from the
17 Agency' s principal place of business when said travel is
18 specifically required or authorized by the Agency, unless such
19 reimbursement is paid directly to the assigned attorney.
20 Limitations on cost of transportation and subsistence expenses
21 shall be the same as those that currently prevail for staff
22 members of the Agency. Agency shall also pay for training and
23 conferences and related travel and lodging for assigned members of
24 the City Attorney' s staff which directly relate to services to
25 Agency.
26 (2) Extraordinary Services . Agency will pay City for
• 27 the actual cost of any extraordinary services provided by the City
28 Attorney. Such services shall include, but shall not be limited
3
1 to, services of the City Attorney Investigator, etc .
• 2 (3) Litigation and Appeals . Agency will pay City for
3 the cost of litigation where Agency is either plaintiff or
4 defendant in the amount of One Hundred Ten Dollars ($110 . 00) per
5 hour . Such amount shall include all attorney, secretarial and
6 paralegal time but shall not include the cost of City Attorney
7 Investigators covered by (d) (2) above, the actual cost of
8 secretarial time in excess of the amount of attorney time
9 expended, the cost of secretarial overtime for such matters , the
10 cost of paralegal overtime for such matters, nor any out-of-pocket
11 expenses such as filing costs, deposition costs, outside
12 secretarial costs , special copy costs, etc .
13 (e) Terms and Conditions . This agreement is subject
• 14 to and incorporates the provisions of any and all federal
15 regulations concerning the provision of legal services to Agency.
16 (f) Conflict of Interest . In the event a conflict of
17 interest results from providing services to both Agency and City,
18 the City Attorney shall disqualify himself and his office from
19 representation of Agency, and Agency shall retain outside counsel .
20 Agency hereby waives any claim that the City Attorney should
21 generally disqualify himself from representing City, and hereby
22 consents to any such representation of City.
23 (g) Termination of Prior Contract . All previous
24 agreements between the parties hereto relating to legal services
25 are hereby terminated on the effective date of this agreement .
26 (h) Termination. This agreement may be terminated by
• 27 either Agency or City upon thirty days , written notice to the
28 other.
4
1 IN WITNESS WHEREOF, the parties have executed this
• 2 agreement, on the day and date first above shown.
3 ATTEST: ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
4
By By
5 Secretary Judith Valles, Chairperson
6 Approved as to form
and legal content :
7
AGENCY COUNSEL
9 By
10
ATTEST : CITY OF SAN BERNARDINO
11
12 By
City Clerk Judith Valles, Mayor
13
14 Approved as to form
and legal content :
15
JAMES F. PENMAN,
16 City Attorney
17
� r
18 By
19 / y
20 J
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