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Consent Calendarcc
° City of San Bernardino
Request for Council Action
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Date: October 18, 2017 0
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To: Honorable Mayor and City Council Members
From: Gary D. Saenz, City Attorney c
Steven P. Graham, Deputy City Attorney
Subject: Retention of B. Tilden Kim of Richards Watson & Gershon for
Legal Services Related to the RIX Retrofit Project and Flow cc
Equalization Project
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Recommendation E
Adopt a Resolution of the Mayor and City Council of the City of San Bernardino, Y
California, approving the Retention of B. Tilden Kim of Richards, Watson & Gershon for
Legal Services Related to the RIX Retrofit Project. P
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Background 0
The San Bernardino Municipal Water Department has commenced construction on an 0
urgent project at the Rapid Infiltration and Extraction (RIX) facility to ensure continued
water flows into the Santa Ana River when the facility undergoes planned and unplanned
maintenance. The construction has encountered numerous complex issues involving
public works construction, environmental protection, and water quality. The Water N
Department has also requested preliminary review of construction documents for the
upcoming Flow Equalization Project.
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S.B.M.C. 2.20.030 requires requests for performance of legal services for any City
department be directed to the City Attorney. This request was made by the Water w
Department. N
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S.B.M.C. 2.20.040 allows outside counsel to be retained, subject to the recommendation w
of the City Attorney, when legal specialization is appropriate on a particular matter. The LL
City Attorney has determined that B. Tilden Kim possesses specialized knowledge of o
complex public works matters in the context of water and wastewater o
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S.B.M.C. 2.20.070 requires Mayor and City Council approval of the retention of outsideUi
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counsel.
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Discussion
The Water Department, with the approval of the City Attorney's Office, has sought
specialized legal counsel to advise on legal matters that have arisen during the
construction of the RIX Retrofit Project. B. Tilden Kim specializes in representing public 5
entities in public works and infrastructure matters and has broad experience in assisting in
public entities with management of the construction process. Mr. Kim has specific
expertise with water agencies and the issues that arise during water construction
projects. w
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Fiscal Impact
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There will be no impact to the General Fund from this retention. The retention will be
paid from funds managed by the Water Board. The initial agreement will have a not to Cd
exceed amount of FIFTY THOUSAND DOLLARS ($50,000). Any increase to that o
amount will require approval of the Water Board.
Conclusion c
It is recommended that the Mayor and City Council adopt the Resolution.
Attachments 0
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Attachment 1 — Resolution Y
Attachment 2 — Biography of B. Tilden Kim
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Ward: Citywide
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Synopsis of Previous Council Actions: o
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1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING THE RETENTION OF B. TILDEN KIM
3 OF RICHARDS, WATSON & GERSHON FOR LEGAL SERVICES RELATED TO THE
4 RIX RETROFIT PROJECT AND FLOW EQUALIZATION PROJECT Cn
5 WHEREAS, the San Bernardino Municipal Code requires requests for performance of
6 legal services be directed to the City Attorney; and
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7 WHEREAS, the Water Department has requested special counsel services related to the N
RIX Retrofit Project and Flow Equalization Project; and
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9 WHEREAS, such legal services require specialized legal knowledge; and c
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10 WHEREAS,the San Bernardino Municipal Code requires retention of special counsel be
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approved by the Mayor and City Council. E.
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12 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: c
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14 SECTION 1. The City Attorney is authorized to execute on behalf of the City of San
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15 Bernardino a Professional Services Agreement with Richards, Watson & Gershon for legal
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16 services related to the RIX Retrofit Project and Flow Equalization Project, and any other such c
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documents as may be necessary to effectuate the intent of this Resolution.
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SECTION 2. The Professional Services Agreement shall include a not to exceed amount
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20 of FIFTY THOUSAND DOLLARS ($50,000} which may only be increased with the approval of c
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21 the Water Board.
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22SECTION 3. Any payment for the provision of legal services under the Professional a
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Services Agreement shall be an obligation of the Water Fund or Sewer Fund as determined by
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the Water Department. Z
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Packet Pg. 463
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1 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING THE RETENTION OF B. TILDEN HIM
2 OF RICHARDS,WATSON & GERSHON FOR LEGAL SERVICES RELATED TO THE
3 RIX RETROFIT PROJECT AND FLOW EQUALIZATION PROJECT
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4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and N
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5 City Council of the City of San Bernardino at a _ meeting thereof, held on the
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day of 2017,by the following vote,to wit: 0
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8 Council Members: AYES NAYS ABSTAIN ABSENT
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9 MARQUEZ _ ��0
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10 BARRIOS N
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VALDIVIA
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SHORETT _ E
13 01-
14 NICKEL
15 RICHARD m
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16 MULVIHILL o
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18 Georgeann Hanna, City Clerk
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The foregoing Resolution is hereby approved this day of ,2017
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22 R. Carey Davis, Mayor J
City of San Bernardino Q
23 Approved as to form: w
24 Gary D. Saenz,City Attorney o
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25 By O
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B.Tilden Kim:Richards,Watson&Gershon http://www.rwglaw.com/people-b-tilden-
RICHARDS
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RICHARDS WATSON GERSHON m
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KIM z
Shareholder I LOS ANGELES ,;�,,.. Cn
213.626.8484 )
213.626.0078 `
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Tilden Kim specializes in representing public entities in public works and infrastructure
matters_ As counsel to numerous Public Works Departments,Tilden has broad PRACTICE AREAS
experience helping public entities manage their bidding and construction process. A p
former Chair of RWG's Litigation Department,he regularly represents RWG clients in the E
array of disputes that can arise from public projects. Y
FOCUS AREAS d
Tilden also is a member of RWG's Water Rights and Water Law focus group. He has
significant exper'ence in groundwater management and related litigation,including recent Construction&Public Works
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adjudications in the Santa Maria Valley and Anza Valley. Presently,he is part of the RWG Groundwater Management p
working group that is helping Nipomo Community Services District and Marina Coast Insurance Coverage&Claims o
Water District comply with statutory obligations under the Sustainable Groundwater
lyes,Assessments&Fees
Management Act_
�rdater Rights&Water Law
A key aspect of Tilden's practice is his experience representing clients before California's Writs&Appeals rn
numerous administrative agencies. He has successfully represented clients before the 04
Public Utilities Commission,Cal-OSHA ano the Department of Industrial Relations. For EDUCATION .,
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example,Tilden has successfully prevented a major trarsmission line(Valley Rainbow) Z
from bisecting the Temecula Valley Wine Country. Tilden is currently opposing the J.D,University of California,Davis,School of Law
Riverside Transmission Reliability Project before the Cal'.fornia Public Utilities Commission lZ
a_s,university of California,Davis W
on behalf of the City ofjurupa Valley. Tildeit also regularly works on water-rate cases for N
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many of our public agencies. Q
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WORK FOR CLIENTS
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Tilden advises many of RW&Gs water-related clients,including but not limited to Nipomo
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Community Service District,Marina Coast Water District,State Water Contractors,San H
Bernardino Municipal Water District,and Beaumont Cherry Valley Water District. W
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Tilden advises most of the RWG's Public Works Departments,including the Cities of
Agoura Hills,Beverly Hills,Buena Park, Fa rfield,La Mirada,Mill Valley,Palmdale,Rancho
Cucamonga,Seal Beach,Temecula,and Westlake Village. 0
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1 oft Packet Pg. 465
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B.Tilden Kim:Richards,Watson&Gershon http://www.rwglaw.com/people-b-tilden 29.c
Tilden regularly works with Public Works staff in establishing a sufficient record for finding
bidders to be nonresponsive when they fail to submit a proper bid,thereby minimizing
the potential for a lawsuit with a disgruntled bidder. Tilden also works with Public Works
staff on payment,performance,and warranty bond issues,and has successfully
prosecuted several multi-million dollar recoveries against performance bond sureties and rn
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general contractors. Tilden successfully extricates many public entity clients from
mechanics liens and other contractor/subcontractor disputes in an economical manner
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PUBLISHED OPINIONS -J
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Barratt American,Inc v.City of Rancho Cucamonga,37 Cal.4th 685(2005). Tilden a
successfully represented the City of Rancho Cucamonga in a challenge under the s
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Mitigation Fee Act to the citys building permit fee structure.In Barratt,a real estate
developer filed petition for writ of mandate and complaint against the City of Rancho
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Cucamonga,challenging fees for building permits and plan reviews.Tilden represented C
the City before the Supreme Court,where it held that: (1)Fees developer paid were H
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not"development project fees"subject to Mitigation Fee Act's individual refund remedy 3
and limitations period;(2)Permit and plan review fees were not"special taxes"subject H
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to penalty or offset under Proposition 62;(3)The City was not required to conduct
annual financial audit of revenues received from fees;and(4)Mandamus was not
available remedy for city's alleged failure to comply with statutory duty to review and
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adjust fees. E
City of Santa Maria v.Adam,211 Cal.App.4th 266(2012);City of Santa Moria v.Adam,
248 CalApp.4th 504(2016). Tilden represented the Nipomo Community Services
District,establishing important precedent that landowner demands for"quiet title"and
quantification of future potential prescriptive rights cannot be done without an m
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"overdraft"determination,and a basin-wide quantification of production by overlyers O
and other pumpers. Q
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