HomeMy WebLinkAbout2019-186Resolution No. 2019-186
RESOLUTION NO. 2019-186
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO ACTING AS THE SUCCESSOR AGENCY
TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND STRADLING YOCCA
CARLSON & RAUTH P.C. FOR LEGAL SERVICES
RELATED TO LITIGATION
WHEREAS, the Successor Agency desires to retain Stradling Yocca Carlson & Routh
P.C. (SYCR) to provide special counsel legal services to the Successor Agency by representing
the Successor Agency 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 Successor Agency; 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 in
Exhibit A — Professional Services Agreement Litigation/Successor Agency; and
WHEREAS, the Parties acknowledge and agree that SYCR will also represent the City
of San Bernardino ("City") and Panattoni Development Company, Inc. ("Panattoni") in the
Consolidated Cases; and
WHEREAS, SYCR's representation of the City is pursuant to a separate agreement
between SYCR and the City; and
WHEREAS, Panattoni has tendered its defense of the claims alleged in the Consolidated
Cases and called upon the Successor Agency to defend, indemnify, and hold Panattoni harmless
from and against said claims pursuant to an Assignment Agreement entered between the former
Redevelopment Agency of the City of San Bernardino and Panattoni; and
WHEREAS, the Successor Agency has accepted Panattoni's tender and agreed to
provide Panattoni with a defense against the Consolidated Actions; and
WHEREAS, SYCR has agreed to represent Panattom and the Successor Agency has
agreed to pay SYCR's fees for said representation pursuant to the terms of the attached
agreement; and
WHEREAS, the Successor Agency 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
Resolution No. 2019-186
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; and
WHEREAS, The Successor Agency 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 attached agreement; and
NOW, THEREFORE, in consideration of the mutual promises exchanged in the
attached 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".
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO ACTING AS THE SUCCESSOR AGENCY TO THE FORMER
REDEVELOPMENT AGENCY 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 an Professional Services
Agreement between the City of San Bernardino acting as the Successor Agency to the former
Redevelopment Agency of the City of San Bernardino and Stradling Yocca Carlson & Rauth
P.C. for Legal Services related to litigation, attached hereto as Exhibit "A" 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.
SECTION 5. Effective Date. This Resolution shall become effective inunediately.
APPROVED and ADOPTED by the City
by the City Clerk this 17'h day of July 2019.
Attest:
Georgeann i ruga, MM Ci Clerk
Approved as to form:
Gary D. Saenz, City Attorney
Resolution No. 2019-186
1.91 gned by the Mayor and attested
John Valdivia, Mayor
City of San Bernardino
Resolution No. 2019-186
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. 2019-186 adopted at a regular meeting held on the 17'h day of July 2019 by the
following vote:
Council Members: AYES
SANCHEZ }
FIGUEROA x
SHORETT X
NICKEL X
RICHARD x
MULVIHILL x
NAYS ABSTAIN ABSENT
0
WITNESS my hand and official seal of the City of San Bernardino -this 174h day of July 2019.
GeorgeHanna, MMQ, City Clerk
AGREEMENT FOR SPECIAL COUNSEL LEGAL SERVICES
This Agreement for Special Counsel Legal Services ("Agreement") is made and entered into
this 17`h day of July, 2019 by the CITY OF SAN BERNARDINO AS SUCCESSOR AGENCY TO
THE FORMER REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("Successor Agency") and STRADLING YOCCA CARLSON & RAUTH, a professional
corporation ("SYCR"). The CITY and SYCR are sometimes referred to herein individually as a
"Parry" and collectively as the "Parties"
RECITALS
WHEREAS, the Successor Agency desires to retain SYCR to provide special counsel legal
services to the Successor Agency by representing the Successor Agency 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 Successor Agency; 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 ("City") and Panattoni Development Company, Inc. ("Panattoni") in the
Consolidated Cases. SYCR's representation of the City is pursuant to a separate agreement between
SYCR and the City. Panattoni has tendered its defense of the claims alleged in the Consolidated
Cases and called upon the Successor Agency to defend, indemnify, and hold Panattoni harmless from
and against said claims pursuant to an Assignment Agreement entered between the former
Redevelopment Agency of the City of San Bernardino and Panattoni. The Successor Agency has
accepted Panattoni's tender and agreed to provide Panattoni with a defense against the Consolidated
Actions. SYCR has agreed to represent Panattoni and the Successor Agency has agreed to pay
SYCR's fees for said representation pursuant to the terms of this Agreement. The Successor
Agency 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 Successor Agency 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:
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Section 1. Special Counsel Services.
The Successor Agency hereby retains SYCR to provide and SYCR agrees to provide special
counsel legal services as the Successor Agency's attorney in the Consolidated Cases. SYCR shall
also represent any designated officer or employee of the Successor Agency 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 Successor Agency, represent any former officer or
employee of the Successor Agency who may later be named, called as a witness, or otherwise
compelled to participate in the Consolidated Cases.
Section 1. Fees.
SYCR's shall charge for the special counsel legal services rendered to the Successor Agency
based upon hourly rates ranging between $150 and $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 $375 per hour
Associates $350 per hour
Paralegal $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 Successor Agency (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 Successor Agency, 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 Successor Agency'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 Successor Agency. 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 Successor Agency wishes to question any charge, the Successor Agency must do so within
fifteen (15) days of the statement date by contacting the shareholder in charge of the matter.
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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 Successor Agency 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 Successor Agency,
or, SYCR may forward any and all bills received from retained expert witnesses, consultants, or
other professionals to the Successor Agency and the Successor Agency will pay it directly.
Section 5. Termination.
Either the Successor Agency 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 Successor Agency 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 Successor Agency 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 Successor Agency 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 Successor Agency. 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 Successor Agency. No provision of
this Agreement shall be interpreted or construed to give the Successor Agency 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 Successor Agency 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
Successor Agency shall not pay salaries, wages or other compensation to SYCR or to any employee
of SYCR for performing legal services for the Successor Agency hereunder.
Section 8. Insurance.
SYCR shall maintain the following type of insurance with limits as shown:
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(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 Successor Agency, 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 9. Assignment 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 Successor
Agency. 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 Successor Agency 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 SUCCESSOR AGENCY'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 SUCCESSOR AGENCY, 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
Successor Agency's list, SYCR may at its sole discretion (i) select any individual from that list and
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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 Successor Agency 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 Successor Agency 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 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 Successor Agency and SYCR agree that the construction and
interpretation of this Agreement and the rights and duties of the Successor Agency 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
Successor Agency.
(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 Successor
Agency 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.
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(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 Successor Agency has been told, recognizes and
understands that SYCR has made no guarantee promising the success or outcome of any legal action.
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 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.
CITY OF SAN BERNARDINO AS
SUCCESSOR AGENCY TO THE FORMER
REDEVELOPMENT AGENCY OF THE CITY
Dated: 2 OF SAN BERNARDINO
By
Dated:
NG-U9ZQVMF2/4819-0393-1547v1/200737-0001
STRADLINGY RL SON & RAUTH,
a Professional oro r 10
LE
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