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HomeMy WebLinkAbout2019-185Resolution No. 2019-185 RESOLUTION NO. 2019-185 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE„ EXECUTION OF TWO PROFESSIONAL SERVICES AGREEMENTS BETWEEN THE CITY OF SAN BERNARDINO AND STRADLING YOCCA CARLSON & RAUTH P.C. RELATED TO REORGANIZATION AND FINANCIAL RESTRUCTURING AND LITIGATION SERVICES WHEREAS, the City desires to retain Stradling Yocca Carlson & Rauth P.C. (SYCR) to provide special counsel legal services to the City by representing the City in litigation known as Redevelopment Agency of the City of San Bernardino v. DMC Investment Holdings, LLC, et al., Los Angeles Superior Court Case No. BC465755, and Placo San Bernardino, LLC v. City of San Bernardino, et al., Los Angeles Superior Court Case No. BC468955 (the "Consolidated Cases") and SYCR desires to provide those special counsel legal services to the City; and WHEREAS, the attorneys of SYCR are duly licensed under the laws of the State of California and are fully qualified to provide the special counsel legal services contemplated by this Agreement; and WHEREAS, the Parties acknowledge and agree that SYCR will also represent the City of San Bernardino as Successor Agency to the former Redevelopment Agency of the City of San Bernardino ("Successor Agency") and Panattoni Development Company, Inc. ("Panattoni"), pursuant to a separate agreement between SYCR and the Successor Agency, in the Consolidated Cases; and WHEREAS, the City acknowledges and reaffirms its previous consent to and waiver of potential Conflicts inherent in SYCR's joint representation of the City, Successor Agency, and Panattoni in the Consolidated Cases; and WHEREAS, it is the Parties' current understanding that the City intends to seek to have the Bankruptcy Court in the City's currently pending bankruptcy action, In Re: City of San Bernardino, California, United States Bankruptcy Court Central District of California Case No. 6:12-bk-28.006-SC, take jurisdiction of the Consolidated Cases; and WHEREAS, the City desires to have SYCR continue to represent it in connection with the Consolidated Cases whether in the California State Superior Court or in the Bankruptcy Court and SYCR agrees to provide such representation; and WHEREAS, in either event, the Parties agree that SYCR's representation will be pursuant to the Agreement attached as Exhibit A — Professional Services Agreement Litigation/City-, and WHEREAS, the City previously entered into a Professional Services Agreement Between the City and SYCR for Reorganization and Financial Restructuring Advice, effective Resolution No. 2019-185 June 12, 2012 to provide legal services to the City Attorney's Office on legal issues involving the reorganization and financial restructuring of the City (the "June 2012 Agreement"); and WHEREAS, the June 2012 Agreement was amended by Amendment Number One to the Professional Services Agreement Between the City and SYCR, effective on or about August 1, 2012 to, among other things, include the filing of a petition under Chapter 9 of the United States Bankruptcy Code, (the "August 2012 Amendment") Collectively, the June 2012 Agreement and August 1, 2012 Amendment are referred to as the "Original Agreement"); and WHEREAS, the City terminated the Original Agreement, effective on or about June 5, 2019 but now desires to rescind such termination and reinstate it and retain SYCR to continue to represent the City in it's currently pending bankruptcy action, In Re: City of San Bernardino, California, United States Bankruptcy Court Central District of California Case No. 6:12-bk- 28006-SC (the Case"); and WHEREAS, the City desires to have SYCR continue to represent it in connection with the Case whether in the California State Superior Court or in the Bankruptcy Court and SYCR agrees to provide such representation pursuant to the Agreement attached as Exhibit B — Professional Services Agreement/Reorganization and Financial Restructuring which shall supersede and restate the Original Agreement; and NOW, THEREFORE, in consideration of the mutual promises exchanged in this Agreement and the foregoing recitals which are incorporated herein by reference, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the terms set forth in Exhibit "A" and Exhibit `B". BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2, The City Manager is hereby authorized to execute two (2) Professional Services Agreements between the City of San Bernardino and Stradling Yocca Carlson & Rauth P.C. related to Reorganization and Financial Restructuring and Litigation Services, attached hereto as Exhibit "A" and Exhibit `B" and incorporated herein. SECTION 3. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable. Resolution No. 2019-185 SECTION 5. Effective Date. This Resolution shall become effective immediately. APPROVED and ADOPTED by the City ��anMned by the Mayor and attested by the City Clerk this 17`h day of July 2019. john Valdivia, Mayor City of San Bernardino Attest: Georgea arena, MMC, ity Clerk Approved to form: Gary D. Saenz, City Attorney Resolution No. 2019-185 CERTIFICATION STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO) I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2019-185 adopted at a regular meeting held on the 17a` day of July 2019 by the following vote: Council Members: AYES NAYS ABSTAIN ABSENT SANCHEZ_ MARRA FIGUEROA _ SHORETT X NICKEL X RICHARD X MULVIHILL WITNESS my hand and official seal of the City of San Bernardino t iffs-17'h day of July 2019. GeorgeanofHanna, MMC, City Clerk AGREEMENT FOR SPECIAL COUNSEL LEGAL SERVICES This Agreement for Special Counsel Legal Services ("Agreement") is made and entered into this ITh day of July, 2019 by the CITY OF SAN BERNARDINO ("City") and STRADLING YOCCA CARLSON & RAUTH, a professional corporation ("SYCR"). The CITY and SYCR are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS WHEREAS, the City desires to retain SYCR to provide special counsel legal services to the City by representing the City in litigation known as Redevelopment Agency of the City of San Bernardino v. DMC Investment Holdings, LLC, et al., Los Angeles Superior Court Case No. BC465755, and Placo San Bernardino, LLC v. City of San Bernardino, et al., Los Angeles Superior Court Case No. BC468955 (the "Consolidated Cases") and SYCR desires to provide those special counsel legal services to the City; and WHEREAS, the attorneys of SYCR are duly licensed under the laws of the State of California and are fully qualified to provide the special counsel legal services contemplated by this Agreement; WHEREAS, the Parties acknowledge and agree that SYCR will also represent the City of San Bernardino as Successor Agency to the former Redevelopment Agency of the City of San Bernardino ("Successor Agency") and Panattoni Development Company, Inc. ("Panattoni"), pursuant to a separate agreement between SYCR and the Successor Agency, in the Consolidated Cases. The City acknowledges and reaffirms its previous consent to and waiver of potential conflicts inherent in SYCR's joint representation of the City, Successor Agency, and Panattoni in the Consolidated Cases; and WHEREAS, it is the Parties' current understanding that the City intends to seek to have the Bankruptcy Court in the City's currently pending bankruptcy action, In Re: City of San Bernardino, California, United States Bankruptcy Court Central District of California Case No. 6:12-bk-28006- SC, take jurisdiction of the Consolidated Cases. The City desires to have SYCR continue to represent it in connection with the Consolidated Cases whether in the California State Superior Court or in the Bankruptcy Court and SYCR agrees to provide such representation. In either event, the Parties agree that SYCR's representation will be pursuant to this Agreement; NOW, THEREFORE, in consideration of the mutual promises exchanged in this Agreement and the foregoing recitals which are incorporated herein by reference, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Special Counsel Services. The City hereby retains SYCR to provide and SYCR agrees to provide special counsel legal services as the City's attorney in the Consolidated Cases. SYCR shall also represent any designated officer or employee of the City who may later be named, called as a witness, or otherwise compelled to participate in the Consolidated Cases. SYCR shall also, at the sole discretion and direction of the City, represent any former officer or employee of the City who may later be named, called as a witness, or otherwise compelled to participate in the Consolidated Cases. Page 1 NG-U9ZQVMF2/4832-7035-2795v 1 /200430-0015 Section 1. Fees. SYCR's shall charge for the special counsel legal services rendered to the City based upon hourly rates ranging between $150 and of $375 per hour. Time will be charged by SYCR in increments of 1/10 of an hour (i.e., six minute units). Fees shall be billed monthly and, beginning in 2020, shall be annually increased (on July 1 of each year) in an amount equal to the annual average consumer price index calculated by the U.S. Department of Labor Statistics [all urban consumers vs. city average] for the preceding calendar year. SYCR shall charge the following hourly rates: Shareholders Associates Paralegal $375 per hour $350 per hour $150 per hour SYCR shall charge one-half (1 /2) of the above identified hourly rates for time spent travelling to and from locations on behalf of the City (e.g., from office to city hall and return or office to court and return), therefore SYCR shall not be entitled to reimbursement for mileage and parking fees. Section 2. Reimbursement For Expenses. In addition to the above fees, SYCR will be reimbursed for out-of-pocket expenses incurred in connection with its representation of the City, including, but not limited to, filing fees, fees for electronic filing, long distance telephone calls, telegrams, outside messenger service, document production and reproduction, travel at the City's request (not including mileage), hotel, meals, and toll charges and similar items. Section 3. Monthly Bills. SYCR shall submit monthly billing statements to the City. The monthly billing statements shall separately identify the services performed on a particular day in a single time entry for each professional and will include an itemization, or single charge, of SYCR's out-of-pocket expenses. Payment is due within thirty (30) days of the date of each monthly billing statement. Overdue statements will be charged interest at ten percent (10%) per annum, compounded annually. If the City wishes to question any charge, the City must do so within fifteen (15) days of the statement date by contacting the shareholder in charge of the matter. Section 4. Experts. SYCR shall obtain approval from the City Attorney's Office, or its designee, to retain expert witnesses, consultants, and other professionals (not including court reporters) to assist in SYCR's in its representation of the City in the Consolidated Cases. SYCR may elect to pay the fees and charges of retained expert witnesses, consultants, or other professionals and then include such fees and charges in its monthly billing statement for reimbursement by the City, or, SYCR may forward any and all bills received from retained expert witnesses, consultants, or other professionals to the City and the City will pay it directly. Page 2 NG-U9ZQVMF2/4832-7035-2795v1 /200430-0015 Section 5. Termination. Either the City or SYCR may terminate SYCR's representation at any time, without cause, subject to an obligation to give notice in writing to the other party at least thirty (30) days prior to termination. In either circumstance, the City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record. SYCR agrees to cooperate fully in any such transition, including the transfer of files. Notwithstanding the termination of SYCR's representation, the City will remain obligated to pay to SYCR all fees and costs incurred prior thereto. Section 6. Modifications to this Agreement. Unless otherwise provided for in this Agreement, modifications relating to the nature, extent or duration of SYCR's professional services to be rendered hereunder shall require the prior written approval of the City Attorney, or her designee. Any such written approval shall be deemed a supplement to this Agreement and shall specify any changes to this Agreement. Section 7. Independent Contractor. The City and SYCR agree that any employee of SYCR providing legal services under this Agreement is at all times acting as an independent contractor rather than as an employee of the City. SYCR's employees shall at all times be under SYCR's exclusive direction and control. SYCR and its employees are free to contract to provide similar or different legal services to other clients while SYCR is under contract with the City. No provision of this Agreement shall be interpreted or construed to give the City the right to (i) direct SYCR or any employee of SYCR as to the details of how the legal services provided hereunder are to be rendered or (ii) exercise any measure of control over the means by which such legal services are accomplished. The City only has the right to direct SYCR as to the desired end results with respect to any legal services to be provided hereunder. No employee of SYCR shall be eligible for any employee benefits provided by the City in connection with performance of legal services under this Agreement. Except for fees and costs paid to SYCR as provided in this Agreement, the City shall not pay salaries, wages or other compensation to SYCR or to any employee of SYCR for performing legal services for the City hereunder. Section 8. Insurance. SYCR shall maintain the following type of insurance with limits as shown: (a) Workers Compensation. SYCR shall maintain Workers Compensation Insurance as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of SYCR and all risks to such persons under this Agreement. SYCR shall require its Workers Compensation carrier to waive all rights of subrogation against the City, its officers and employees, and any others for whom services are being provided under this Agreement. (b) Comprehensive General and Automobile Liability Insurance. SYCR shall maintain Comprehensive General and Automobile Liability Insurance, including contractual coverage and automobile coverage for owned, hired and non -owned vehicles, with not less than a combined single limit of $1,000,000 for bodily injury and property damage. Page 3 NG-LT9ZQVMF2/4832-7035-2795v1/200430-0015 (c) Professional Liability Insurance. SYCR shall maintain Professional Liability Insurance with limits of at least $1,000,000 per claim. Section 9. AssigMent and Delegation. This Agreement contemplates the professional services of SYCR and this Agreement, or any - portion thereof, shall not be assigned or delegated without the prior written consent of the City. Delegation to attorneys outside SYCR shall be limited to those situations in which SYCR is disqualified by virtue of a conflict of interest, or where SYCR does not possess the expertise to competently perform services in a particular practice area. Delegation shall not be made without the prior written approval of the City and SYCR- SYCR shall supervise delegated work, except where precluded from doing so by virtue of a conflict of interest. Section 10. Arbitration, IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO SYCR' S RELATIONSHIP WITH THE CITY, OR SYCR'S OR THE CITY'S PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES WHICH WE RENDER, THE DISPUTE SHALL BE DETERMINED, SETTLED AND RESOLVED BY CONFIDENTIAL ARBITRATION IN ORANGE COUNTY, CALIFORNIA. ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO HAVE ANY FEE DISPUTE ARBITRATED PURSUANT TO NONBINDING ARBITRATION UNDER STATUTORY OR CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL DETERMINE ONLY THE ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO YOU. ANY OTHER CLAIMS OR DISPUTES BETWEEN SYCR AND THE CITY, INCLUDING CLAIMS FOR PROFESSIONAL NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION PURSUANT TO THIS AGREEMENT. Arbitration may be demanded by the sending of written notice to the other party. If arbitration is demanded, within 20 days of the demand you shall present a list of five qualified individuals who would be willing to serve that you would find acceptable to act as arbitrator. To serve as arbitrator, the individual must be a retired judge having served on any federal court or the California Superior Court or higher court in the State of California. Within 20 days of receiving the City's list, SYCR may at its sole discretion (i) select any individual from that list and that individual shall serve as the arbitrator, or (ii) propose SYCR's own list of five individuals for arbitrator. If SYCR chooses to present a separate list, the City may within 20 days select any individual from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end of this process, each of the Parties shall select one individual from the respective lists and those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to the procedures set forth in the California Code of Civil Procedure §§ 1280 et seq., and in that connection the City and SYCR agree that § 1283.05 thereof is applicable to any such arbitration. Nothing herein shall limit the right of the Parties to stipulate and agree to conduct the arbitration pursuant to the then -current rules of the American Arbitration Association, the Judicial Arbitration & Mediation Services, or any other agreed-upon arbitration services. Page 4 NG-U9ZQVMF2/4832-7035-2795v 1 /200430-0015 Section 11. General Provisions. (a) The text herein shall constitute the entire agreement between the Parties. There are no oral agreements or understandings or any other written agreements which directly or indirectly affect the terms and conditions of this Agreement. (b) If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall -remain in full force and effect. (c) No addition, modification, amendment, or deletion to this Agreement shall be valid unless it is in writing and executed by the parties to this Agreement. (d) This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the Attorney. (e) The City and SYCR agree that the construction and interpretation of this Agreement and the rights and duties of the City and SYCR hereunder shall be governed by the laws of the State of California. (f) SYCR shall act as an independent contractor in providing the services described in this Agreement. SYCR shall be solely responsible for the supervision, and protection of its employees or consultants, if any, and furnish the services in SYCR's own manner and method. In no respect shall SYCR, its agents, employees, or consultants, if any, be considered employees of the City. (g) SYCR agrees to scrupulously avoid performing services for any party or entering into any contractual or other relationship with any party which might create a conflict with the rendering of services under this Agreement. SYCR shall immediately inform the City of any conflict of interest or potential conflict of interest which may arise during the term of this Agreement by virtue of any past, present, or prospective act or omission of SYCR. (h) SYCR agrees to comply with all federal, state and local laws, rules, and regulations, now or hereafter in force, pertaining to the services performed pursuant to this Agreement. (i) Venue for any proceeding under this Agreement shall be in the County of Orange, California. 0) SYCR agrees to comply with all applicable fair employment and equal opportunity practices and not to discriminate against any applicants or employees of SYCR because of their membership in a protected class. (k) Results not guaranteed. The City has been told, recognizes and understands that SYCR has made no guarantee promising the success or outcome of any legal action. Page 5 NG-U9ZQV W2/4832 -7035-2795v1/200430-0015 Section 12. Entire Agreement. This Agreement shall constitute the full and complete Agreement and understanding of the parties and shall be deemed to supersede all other written or oral statements of either parry relating to the subject matter hereof. IN WITNESS WHEREOF, the duly authorized representative of these parties has caused this Agreement to be executed as of the dates indicated below. Dated: -71 le-) le Dated: NG-U9ZQVMF2/4832-7035-2795v1 /200430-0015 City of Sail Bernardino By. � S, a Page 6 RAUTH, AGREEMENT FOR SPECIAL COUNSEL LEGAL SERVICES This Agreement for Special Counsel Legal Services ("Agreement") is made and entered into this 17a' day of July, 2019 by the CITY OF SAN BERNARDINO ("City") and STRADLING YOCCA CARLSON & RAUTH, a professional corporation ("SYCR"). The CITY and SYCR are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS WHEREAS, the City previously entered into a Professional Services Agreement Between the City and SYCR for Reorganization and Financial Restructuring Advice, effective June 12, 2012 to provide legal services to the City Attorney's Office on legal issues involving the reorganization and financial restructuring of the City (the "June 2012 Agreement"); WHEREAS, the June 2012 Agreement was amended by Amendment Number One to the Professional Services Agreement Between the City and SYCR., effective on or about August 1, 2012 to, among other things, include the filing of a petition under Chapter 9 of the United States Bankruptcy Code, (the "August 2012 Amendment") Collectively, the June 2012 Agreement and August 1, 2012 Amendment are referred to as the "Original Agreement"); WHEREAS, the City terminated the Original Agreement, effective on or about June 5, 2019 but now desires to rescind such termination and reinstate it and retain SYCR to continue to represent the City in it's currently pending bankruptcy action, In Re: City of San Bernardino, California, United States Bankruptcy Court Central District of California Case No. 6:12-bk-28006-SC (the Case"). The City desires to have SYCR continue to represent it in connection with the Case whether in the California State Superior Court or in the Bankruptcy Court and SYCR agrees to provide such representation pursuant to this Agreement which shall supersede and restate the Original Agreement; NOW, THEREFORE, in consideration of the mutual promises exchanged in this Agreement and the foregoing recitals which are incorporated herein by reference, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Special Counsel Services. The City hereby rescinds its termination of the Original Agreement and reinstates it to retain SYCR to provide and SYCR agrees to provide special counsel legal services as the City's attorney in the Case pursuant to this Agreement, which shall supersede the Original Agreement in its entirety. Section 2. Fees. Time will be charged by SYCR in increments of 1/10 of an hour (i.e., six minute units). Fees shall be billed monthly. SYCR shall charge the following hourly rates: Attorneys $380 per hour Paralegal $150 per hour Page 1 SYCR shall charge one-half (1/2) of the above identified hourly rates for time spent travelling to and from locations on behalf of the City (e.g., from office to city hall and return or office to court and return), therefore SYCR shall not be entitled to reimbursement for mileage and parking fees. There shall be a fee cap and limitation under the Agreement in the amount of Six Hundred Fifty Thousand Dollars ($650,000.00) for fees for legal services commencing April 1, 2019 (performed under the Original Agreement and this Agreement) through the closing of the bankruptcy case, provided that, the following legal services and matters shall be excluded from the limitation/cap: any new material (i) challenges to the Plan or Plan Injunction, (ii) creditor claims, (iii) claims of City breach of Plan requirements or agreements, and (iv) any appeals or motions for reconsideration ensuing from any of the foregoing, subject to the approval of the City Attorney's office as to each such exclusion. Section 3. Reimbursement For Expenses. In addition to the above fees, SYCR will be reimbursed for out-of-pocket expenses (specifically excluding mileage) incurred in connection with its representation of the City, including, but not limited to, filing fees, fees for electronic filing, long distance telephone calls, telegrams, outside messenger service, document production and reproduction, travel at the City's request (not including mileage), hotel, meals, and toll charges and similar items. Section 4. Monthly Bills. SYCR shall submit monthly billing statements to the City. The monthly billing statements shall separately identify the services performed on a particular day in a single time entry for each professional and will include an itemization, or single charge, of SYCR's out-of-pocket expenses. Payment is due within thirty (30) days of the date of each monthly billing statement. Overdue statements will be charged interest at ten percent (10%) per annum, compounded annually. If the City wishes to question any charge, the City must do so within fifteen (15) days of the statement date by contacting the shareholder in charge of the matter. Section 5. Experts. SYCR shall obtain approval from the City Attorney's Office, or its designee, to retain expert witnesses, consultants, and other professionals (not including court reporters) to assist in SYCR's in its representation of the City in the Case. SYCR may elect to pay the fees and charges of retained expert witnesses, consultants, or other professionals and then include such fees and charges in its monthly billing statement for reimbursement by the City, or, SYCR may forward any and all bills received from retained expert witnesses, consultants, or other professionals to the City and the City will pay it directly. Section 6. Termination. Either the City or SYCR may terminate SYCR's representation at any time, without cause, subject to an obligation to give notice in writing to the other party at least thirty (30) days prior to termination. In either circumstance, the City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record. SYCR agrees to cooperate fully in any sucli transition, including the transfer of files. Notwithstanding the Page 2 termination of SYCR's representation, the City will remain obligated to pay to SYCR all fees and costs incurred prior thereto. Section 7. Modifications to this Agreement. Unless otherwise provided for in this Agreement, modifications relating to the nature, extent or duration of SYCR's professional services to be rendered hereunder shall require the prior written approval of the City Attorney, or her designee. Any such written approval shall be deemed a supplement to this Agreement and shall specify any changes to this Agreement. Section 8. Independent Contractor. The City and SYCR agree that any employee of SYCR providing legal services under this Agreement is at all times acting as an independent contractor rather than as an employee of the City. SYCR's employees shall at all times be under SYCR's exclusive direction and control. SYCR and its employees are free to contract to provide similar or different legal services to other clients while SYCR is under contract with the City. No provision of this Agreement shall he interpreted or construed to give the City the right to (i) direct SYCR or any employee of SYCR as to the details of how the legal services provided hereunder are to be rendered or (ii) exercise any measure of control over the means by which such legal services are accomplished. The City only has the right to direct SYCR as to the desired end results with respect to any legal services to be provided hereunder. No employee of SYCR shall be eligible for any employee benefits provided by the City in connection with performance of legal services under this Agreement. Except for fees and costs paid to SYCR as provided in this Agreement, the City shall not pay salaries, wages or other compensation to SYCR or to any employee of SYCR for performing legal services for the City hereunder. Section 9. Insurance. SYCR shall maintain the following type of insurance with limits as shown: (a) Workers Compensation. SYCR shall maintain Workers Compensation Insurance as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of SYCR and all risks to such persons under this Agreement. SYCR shall require its Workers Compensation carrier to waive all rights of subrogation against the City, its officers and employees, and any others for whom services are being provided under this Agreement. (b) Comprehensive General and Automobile Liability Insurance. SYCR shall maintain Comprehensive General and Automobile Liability Insurance, including contractual coverage and automobile coverage for owned, hired and non -owned vehicles, with not less than a combined single limit of $1,000,000 for bodily injury and property damage. (c) Professional Liability Insurance. SYCR shall maintain Professional Liability Insurance with limits of at least $1,000,000 per claim. Section 10. Assignment and Deleoation. This Agreement contemplates the professional services of SYCR and this Agreement, or any - portion thereof, shall not be assigned or delegated without the prior written consent of the City. Delegation to attorneys outside SYCR shall be limited to those situations in which SYCR is Page 3 disqualified by virtue of a conflict of interest, or where SYCR does not possess the expertise to competently perform services in a particular practice area. Delegation shall not be made without the prior written approval of the City and SYCR- SYCR shall supervise delegated work, except where precluded from doing so by virtue of a conflict of interest. Section 11. Arbitration. IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO SYCR'S RELATIONSHIP WITH THE CITY, OR SYCR' S OR THE CITY'S PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES WHICH WE RENDER, THE DISPUTE SHALL BE DETERMINED, SETTLED AND RESOLVED BY CONFIDENTIAL ARBITRATION IN ORANGE COUNTY, CALIFORNIA. ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO HAVE ANY FEE DISPUTE ARBITRATED PURSUANT TO NONBINDING ARBITRATION UNDER STATUTORY OR CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL DETERMINE ONLY THE ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO YOU. ANY OTHER CLAIMS OR DISPUTES BETWEEN SYCR AND THE CITY, INCLUDING CLAIMS FOR PROFESSIONAL NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION PURSUANT TO THIS AGREEMENT. Arbitration may be demanded by the sending of written notice to the other party. If arbitration is demanded, within 20 days of the demand you shall present a list of five qualified individuals who would be willing to serve that you would find acceptable to act as arbitrator. To serve as arbitrator, the individual must be a retired judge having served on any federal court or the California Superior Court or higher court in the State of California. Within 20 days of receiving the City's list, SYCR may at its sole discretion (i) select any individual from that list and that individual shall serve as the arbitrator, or (ii) propose SYCR's own list of five individuals for arbitrator. If SYCR chooses to present a separate list, the City may within 20 days select any individual from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end of this process, each of the Parties shall select one individual from the respective lists and those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to the procedures set forth in the California Code of Civil Procedure §§ 1280 et seq., and in that connection the City and SYCR agree that § 1283.05 thereof is applicable to any such arbitration. Nothing herein shall limit the right of the Parties to stipulate and agree to conduct the arbitration pursuant to the then -current rules of the American Arbitration Association, the Judicial Arbitration & Mediation Services, or any other agreed-upon arbitration services. Section 12. General Provisions. (a) The text herein shall constitute the entire agreement between the Parties. There are no oral agreements or understandings or any other written agreements which directly or indirectly affect the terms and conditions of this Agreement. Page 4 (b) If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall -remain in full force and effect. (c) No addition, modification, amendment, or deletion to this Agreement shall be valid unless it is in writing and executed by the parties to this Agreement. (d) This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the Attorney. (e) The City and SYCR agree that the construction and interpretation of this Agreement and the rights and duties of the City and SYCR hereunder shall be governed by the laws of the State of California. (f) SYCR shall act as an independent contractor in providing the services described in this Agreement. SYCR shall be solely responsible for the supervision, and protection of its employees or consultants, if any, and furnish the services in SYCR's own manner and method. In no respect shall SYCR, its agents, employees, or consultants, if any, be considered employees of the City. (g) SYCR agrees to scrupulously avoid performing services for any party or entering into any contractual or other relationship with any party which might create a conflict with the rendering of services under this Agreement. SYCR shall immediately inform the City of any conflict of interest or potential conflict of interest which may arise during the term of this Agreement by virtue of any past, present, or prospective act or omission of SYCR. (h) SYCR agrees to comply with all federal, state and local laws, rules, and regulations, now or hereafter in force, pertaining to the services performed pursuant to this Agreement. (i) Venue for any proceeding under this Agreement shall be in the County of Orange, California. 6) SYCR agrees to comply with all applicable fair employment and equal opportunity practices and not to discriminate against any applicants or employees of SYCR because of their membership in a protected class. (k) Results not guaranteed. The City has been told, recognizes and understands that SYCR has made no guarantee promising the success or outcome of any legal action. Section 13. Entire Aereement. This Agreement shall constitute the full and complete Agreement and understanding of the parties and shall be deemed to supersede all other written or oral statements of either party relating to the subject matter hereof IN WITNESS WHEREOF, the duly authorized representative of these parties has caused this Agreement to be executed as of the dates indicated below. Page 5 City of San Bernardino By: Dated: --- Cl I -r w1a STRADLING YOCCA CARLSON & RAUTH, a Professional Corporation Dated: / r �Z ' ! By: _alw- 4Z--x-- t.c.4. l -C Page 6