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Home My WebLink About2017-2101 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2017-210 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING THE RETENTION OF B. TILDEN ILMI OF RICHARDS, WATSON & GERSHON FOR LEGAL SERVICES RELATED TO THE RIX RETROFIT PROJECT AND FLOW EQUALIZATION PROJECT WHEREAS, the San Bernardino Municipal Code requires requests for performance of legal services be directed to the City Attorney; and WHEREAS, the Water Department has requested special counsel services related to the RIX Retrofit Project and Flow Equalization Project; and WHEREAS, such legal services require specialized legal knowledge; and WHEREAS, the San Bernardino Municipal Code requires retention of special counsel be approved by the Mayor and City Council. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Attorney is authorized to execute on behalf of the City of San Bernardino a Professional Services Agreement with Richards, Watson & Gershon for legal services related to the RIX Retrofit Project and Flow Equalization Project, and any other such documents as may be necessary to effectuate the intent of this Resolution. SECTION 2. The Professional Services Agreement shall include a not to exceed amount of FIFTY THOUSAND DOLLARS ($50,000) which may only be increased with the approval of the Water Board. SECTION 3. Any payment for the provision of legal services under the Professional Services Agreement shall be an obligation of the Water Fund or Sewer Fund as determined by the Water Department. N 1 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 2s RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING THE RETENTION OF B. TILDEN HIM OF RICHARDS, WATSON & GERSHON FOR LEGAL SERVICES RELATED TO THE RIX RETROFIT PROJECT AND FLOW EQUALIZATION PROJECT I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 18th day of October 2017, by the following vote, to wit: Council Members: AYES MARQUEZ X BARRIOS X VALDIVIA X(M) SHORETT X NICKEL X RICHARD X MULVIHILL X(S) NAYS ABSTAIN ABSENT Georgeann AAnna, CMC, 6ty Clerk The foregoing Resolution is hereby approved this 18th day of October 2017 ) � I- (1i Approved as to form: Gary D. Saenz, City Attorney R. Carey Davis, 'Payor City of San Be nardino 1 PROFESSIONAL SERVICES AGREEMENT Potential Dispute with Norstar Plumbing & Engineering Inc. on RIX Wells Retrofit Project; Public 2 Works Contract Review for Flow Equalization Project 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 Richards, Watson & Gershon, A Professional Corporation (hereinafter "Firm") are the parties to 6 this Agreement. 7 2. FIRM will be representing the CITY in a potential dispute with Norstar Plumbing 8 & Engineering Inc. on RIX Wells Retrofit Project ("RIX"), and providing legal advice for a Public 9 Works Contract for the Flow Equalization Project ("FE Project") for the CITY. FIRM shall not 10 represent any client in any type of claim against the CITY without prior written approval to do so 11 from the CITY through the City Attorney's Office. 12 3. FIRM shall be paid at the hourly rates set forth below: 13 Attorney —Partner- $350 per hour; 14 Attorney -Associate- $300 per hour; 15 Amounts expended under this Agreement for attorney fees shall not exceed 16 $45,000 for RIX and $5,000.00 for the FE Project without further approval of the Mayor and City 17 Council. 18 4. Bills shall be submitted at least on a monthly basis and no later than the 5 t day of 19 each succeeding month. 20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 22 FIRM may include a single charge in an amount not to exceed four percent (4%) of attorney fees in 23 lieu of reimbursement for photocopying, telephone charges, and postage. 24 6. If attorney fees are charged Aportal to portal" (e.g., from office to court and return), 25 then FIRM shall not be entitled to reimbursement for mileage and parking fees. 26 7. FIRM shall obtain approval from the CITY to retain expert witnesses, consultants, 11 1 I and other professionals (not including court reporters) for purposes of the litigation. FIRM may, if 2 it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on 3 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 4 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the 5 San Bernardino Municipal Water Department's Finance Director. 6 8. Status reports will be submitted to the CITY through the City Attorney's Office 7 whenever any significant event occurs, and in any event at least quarterly. Information sufficient 8 to set reserves, including, without limitation, potential liability exposure and percentage of fault, 9 shall be included. 10 9. Any and all settlements shall require CITY approval. Request for settlement 11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 12 approvals. 13 10. In the event the settlement value of this case appears to exceed the limits set forth in 14 Section 3 hereof for either RIX or the FE Project, the City Attorney's Office shall be notified 15 immediately. 16 11. No client development costs are to be included in billings. 17 12. No continuing education expenses are to be included in billings. 18 13. Final billing shall be accompanied by copies of the Request for Dismissal, 19' Satisfaction of Judgment, Release and any other final documents. 20 14. Either party may terminate this Agreement at will. FIRM will continue to 21 represent the CITY on the terms and conditions in this Agreement until the case and file are 22 transferred to another attorney. 23 15. FIRM is an independent contractor as to the CITY. 24 16. FIRM shall maintain the following types of insurance with limits as shown: 25 a) Workers Compensation as required by the laws of the State of California, 26 including Employment Liability with $250,000 limits covering all persons 117 FA I providing service on behalf of FIRM and all risks to such persons under this 2 Agreement. FIRM shall require its Workers Compensation carrier to waive all 3 rights of subrogation against the CITY and its officers and employees and any 4 others for whom services are being provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned, hired and 7 non -owned vehicles. The policy shall have at least a combined single limit of 8 $1,000,000 for bodily injury and property damage. 9 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 10 If requested, FIRM shall furnish certificates of insurance and certified copies of all 11 policies and endorsements to the City Attorney's Office evidencing the insurance coverage above 12 required prior to the commencement of performance of services hereunder, which certificates shall 13 provide that such insurance shall not be terminated or expire without thirty (30) days written notice 14 to the City Attorney's Office, and shall maintain such insurance from the time FIRM commences 15 performance of services hereunder until the completion of such services. 16 All policies, with respect to the insurance coverage above required, except for the 17 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 18 obtain additional endorsements naming the CITY and all parties represented under this 19 Agreement, their employees, agents, volunteers and officers as additional named insureds with 20 respect to liabilities arising out of the performance of services hereunder. 21 All policies required above are to be primary and non-contributing with any insurance 22 policies or self-insurance programs carried or administered by the CITY or other parties 23 represented under this Agreement. 24 25 26 3 17. All communications and billings to the CITY are to be directed as follows: 7 City Attorney's Office General Manager 3 CITY OF SAN BERNARDINO S.B.M.W.D. 290 North "D" Street 1350 South "E" Street 4 San Bernardino, CA 92401 San Bernardino, CA 92408 5 6 7 8 9 10 11 18. This Agreement incorporates by reference a letter agreement dated August 22, 2017, a true and correct copy is attached hereto as Exhibit "A." Dated: % % '2017 12 Dated: 2017 13 14 15 16 Dated: ii- �5"� , 2017 17 WE 20 21 Approved as to form: Gary D. Saenz, City Attorney 22 23 By: 24 25 26 77 Richar atson & Gershon, A P.C. By-rlL-j? t*j liC 101., Sk�IRZKoW C Y OF SAN BERNARDINO By: An rea i ler, City Manager CITY OF SAN BERNARDINO Municipal Water Department Y��' " By: Robin Ohama, Deputy General Manager 4 ININ RICHARDS I WATSON I GERSHON N90 ATTORNEYS AT LAW —A PROFESSIONAL CORPORATION 355 South Grand Avenue, 4oth Floor, Los Angeles, California 90071-3101 Telephone 213.626.8484 Facsimile 213.626.0078 RICHARD RICHARDS October 19, 2017 (1916-1988) adverse to the City's interests. However, from time to time our office is asked to GLENN R. WATSON represent the City of Highland with regard to transactional matters that involve the (1917-2010) VIA ELECTRONIC MAIL HARRY L GERSHON for future legal adversity. (1922-2007) Steven P. Graham STEVEN L. DORSEY L. USZ GREGORYLW. IAM STEPANIICICH Deputy City Attorney QUINN M*BARROW CAROL W. LYNCH City of San Bernardino, City Attorney's Office GREGORY M. KUNERT TC«°OBRC Eo 290 North D Street, 3rd Floor ROBIN DG HARRIS San Bernardino, CA 92401 MICHAEL ESTRADA LAURENCE S. WIENER B. TI LD EN KIM SASKIAT. ASAMURA Re: Attorney Conflict Waiver for Richards, Watson & Gershon regarding Public KAYSER O. SOME PETER M. N TAMES L. MARKMAARKMAN Works Special Counsel Work for San Bernardino Municipal Water CRAIG A. STEELE T. PETER PIERCE Department TERENCE R. BOGA LISA BOND ROXANNE M. DIAZ JIM G. GRAYSON Dear Mr. Graham: ROY A. CLARKE MICHAEL F. YOSHIBA REGINA N. DANNER PAULA The San Bernardino Municipal Water Department division of the City San BRUCE W. GALLOWAY GA OWAY 7 a of DIANA K. PATRICK K.. BOBKO OBKO Bernardino (the "Department" or "City") has requested that Richards, Watson & DAVID M. SNOW LOLLY A. EN RIQU EZ Gershon represent it in a potential dispute with Norstar Plumbing & Engineering Inc. GINETTA L. GIOVINCO TRISHA ORTIZ on RIX Wells Retrofit Project ("RIX"), and legal advice for a Public Works CANDICE K. LEE providing JENNIFERPETRUSIS STEVENTEVENL FLOWEERR Contract for the Flow Equalization Project ("FE Project"). This letter follows -up an TOUSSAINT S. BAILEY SERITA R. YOUNG initial engagement letter and Professional Services Agreement. INDER KHALSA AMY GREYSON DEBORAH R. HAKMAN As we discussed, Richards, Watson & Gershon ("RWG") on-going services MARICELA E. MARROQUIN provides LD WHITNEY G. MCDOHANIE in the City, including but STEPHANIE C CAO to several public entities the surrounding geographic area of AN PATRICKSTEPHEN D." EE not limited to the City of Highland. The firm may also be engaged in the future by YOUSTINA N. A 11 BRENDAN KEARNS other private and public entity clients located or doing business within that area or KYLE H. BROCHARD NICHOLAS R. interests the City. For ease of reference, these ISRAISHAH otherwise whose may affect entities ROMTIN PARVARESH ANDREW R. CONTREIRAS are collectively referred to hereafter as "RWG Clients." CASEY STRONG STEVEN A. NGUY MARVIN E. BONILLA ELENA PACHECO We write to request that the City consent to our representation of RWG Clients in all BENIN ETT A. GIVENS LEE A. KAPLAN current and future matters that are adverse or potentially adverse to the City, so long 11 UNSEL MITCHELL EC, ABBOTT as such matters are unrelated to the substance of our representation of the City in the ROCHELLE BROWNE TERESA HO-URANO above -referenced matters. DIANA H. VARAT SAN FRANCISCO OFFICE To our knowledge, RWG currentlyis not representing an client in matters that are g re p g Y TELEPHONE 415.421.8484 ORANGE COUNTY OFFICE adverse to the City's interests. However, from time to time our office is asked to TELEPHONE 714.990.0901 represent the City of Highland with regard to transactional matters that involve the TEMEULA CE TELEPHONE 95 .695 2373 City. Further, with geographically close clients there is a more foreseeable potential CENTRAL COAST OFFICE TELEPHONE 805.439.3515 for future legal adversity. RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Steven P. Graham October 19, 2017 Page 2 The California Rules of Professional Conduct preclude an attorney (or his or her law firm), without the informed written consent of each client, from representing a client in one matter and at the same time, in a separate matter, accepting as a client an entity whose interest in the first matter is adverse to the client in the first matter. Specifically, Rule 3-310 of the Rules of Professional Conduct provides, in relevant part, as follows: Rule 3-310. Avoiding the Representation of Adverse Interests (A) For purposes of this rule: (1) "Disclosure" means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client; (2) "Informed written consent" means the client's or former client's written agreement to the representation following written disclosure; (3) "Written" means any writing as defined in Evidence Code section 250. (B) A member shall not accept or continue representation of a client without providing written disclosure to the client where: (1) The member has a legal, business, financial, professional or personal relationship with a party or witness in the same matter; or (2) The member knows or reasonably should know that: (a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and Steven P. Graham October 19, 2017 Page 3 RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION (b) the previous relationship would substantially affect the member's representation; or (3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or (4) The member has or had a legal, business, financial or professional interest in the subject matter of the representation. (C) A member shall not, without the informed written consent of each client: (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter. This rule means that RWG is precluded from performing services for a new client (the City) if, at the same time, the firm represents an existing client in a matter where the City's interests conflict with an existing client without the informed written consent of each client. Although we currently are unaware of any adverse matters, one effect of representing the City in regard to the RIX and FE Project is that we would be required, in the future, to seek the City's consent to represent the other RWG Clients in matters adverse to the City. Given the broad scope of the City's activities, there is the potential that adverse or potentially adverse matters will arise with other RWG Clients in the future. We feel it is important to preserve continuity of representation for RWG Clients, many of which rely on us in ongoing or long-term general and special counsel relationships. We would not be comfortable accepting the representation of the City on these RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Steven P. Graham October 19, 2017 Page 4 matters unless we had undertaken all available steps to prevent interruption of RWG Clients' legal representation. In light of the foregoing, we request the City to consent to our representation of RWG Clients in any current or future matters involving the City, including those potentially or actually adverse to the City, so long as our representation of an RWG Client is unrelated to the substance of our representation of the City in these two matters. This prospective waiver would be immediately effective and would apply during and after the time RWG is actively representing the City. Included with this letter is a statement of Acknowledgment, Waiver, and Consent, which reads as follows: The City of San Bernardino and the San Bernardino Municipal Water Department (collectively the "City") acknowledges and understands the disclosures and description of potential adverse consequences in connection with the representation of the City in a potential dispute with Norstar Plumbing & Engineering Inc. on RIX Wells Retrofit Project, and providing legal advice for a Public Works Contract for the Flow Equalization Project. The City further consents to RWG's representation of the firm's current and prospective clients in any other current or future matters actually or potentially adverse to the City, including (without limitation) litigation against the City, so long as such matters are unrelated to the substance of RWG's representation of the City in these matters. Under the language of the Acknowledgment, Waiver and Consent, the City will have consented: (i) that, during or after the time that we are providing services to the City related to the two matters identified herein, RWG may represent RWG Clients in any matters that are potentially or actually adverse to the City but that are unrelated to the substance of those matters including, without limitation, litigation adverse to the City and adversarial non -litigation matters such as disputes and negotiations. We are required by the Rules of Professional Conduct to explain the reasonably foreseeable impacts and consequences of the City's waiver and consent sought in this letter. We do not reasonably foresee any significant potential for direct consequences to the City from our representation of any RWG Clients. The request for prospective consent only applies to matters that are substantively unrelated to the RIX and FE RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Steven P. Graham October 19, 2017 Page 5 Project representations. Consequently, there would be no potential for any confidential information we obtain from the City in these two matters to be used against the City in unrelated matters for other RWG clients. Further, the City's interests presumably would be independently and capably represent by its own counsel in any such unrelated matters. The only potentially adverse consequences we foresee at this time are indirect. For example, the City should consider whether it would cause the City to question our loyalty or performance in the RIX and FE Project if attorneys in our firm were to separately represent RWG Clients in matters adverse to the City that are unrelated to the substance of our representation of the City. An effective attorney-client relationship requires the client to have confidence in its counsel's loyalty and objectivity. We have no doubts that we can effectively represent the City in these two matters while separately representing RWG Clients in matters adverse to the City that are unrelated to the substance of our representation of the City. We have an obligation to zealously represent the City in connection with these two matters and are certain we can do that in this situation. We would not seek the City's consent if we believed otherwise and would only proceed if City shared our confidence. In addition, we believe the City should consider any potential perception problems created by our representation of RWG Clients in matters that are adverse to the City. It is extremely common for firms of our size with specialized expertise to represent potentially adverse clients with their mutual consent. However, we are sensitive to the concerns of public entities regarding public perception and urge the City to grant the consent requested herein only if the City concurs with our view regarding the unlikely chance of adverse public perception resulting from our representation of the City. Pursuant to the foregoing, we request that the City sign the attached Acknowledgment, Waiver, and Consent and return it to me at its earliest convenience. The City remains free to seek advice on this matter from its City Council or independent counsel at any time in connection with the approval of this consent. RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Steven P. Graham October 19, 2017 Page 6 I apologize for the formality of this letter, but we are required by California law and the Rules of Professional Conduct to provide this information to you in writing. If you have any questions, please do not hesitate to contact me. Very truly yours, B. Tilden Kim RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW -A PROFESSIONAL CORPORATION Steven P. Graham October 19, 2017 Page 7 Acknowledement, Waiver, and Consent Agreement The City of San Bernardino and the San Bernardino Municipal Water Department (collectively the "City") acknowledges and understands the disclosures and description of potential adverse consequences in connection with the representation of the City in a potential dispute with Norstar Plumbing & Engineering Inc. on RIX Wells Retrofit Project, and providing legal advice for a Public Works Contract for the Flow Equalization Project. The City further consents to RWG's representation of the firm's current and prospective clients in any other current or future matters actually or potentially adverse to the City, including (without limitation) litigation against the City, so long as such matters are unrelated to the substance of RWG's representation of these matters. Dated: October 2017w2L �C N e: tle: 99904-018712128327v2.doc