HomeMy WebLinkAbout12-City Attorney
~cc
,_cc c
'.'~.',...,_.~
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Resolutions approving hiring of Richards,
Watson & Gershon and authorizing a Professional
Services Agreement between the City of San Bernardino
and the law firm of Richards, Watson & Gershon to
represent the City of San Bernardino regarding cable
franchise transfers to Time Warner Cable
Dept: CITY ATTORNEY
Date: July 7, 2005
Synopsis of Previous Council Action:
None.
Recommended motion:
Adopt Resolutions.
1.
Resolution of the Mayor and Common Council of the City of San
Bernardino approving the hiring of Richards, Watson & Gershon to
represent the City regarding franchise transfers to Time Warner Cable.
2. Resolution of the Mayor and Common Council of the City of San
Bernardino Authorizing the Execution of a Professional Services
Agreement Between Richards, Watson & Gershon and the City of San
Bernardino to represent the City regarding franchise transfers to Time
Warner Cable.
Contact person: Michael Reiter
Supporting data attached: StaffReoort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
~08S~~SY I--
JvJDS.. d,S'! A
Agenda Item No. I:A
7/Jrft~
" ,
"=C-'-'''-'~'''-'f'=~
STAFF REPORT
Council Meeting Date: Julv 18.2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: July 7, 2005
AGENDA ITEM: Resolution approving hiring of Richards, Watson & Gershon and authorizing a
ProfessionalServicesAgreement between the City of San Bernardino andthe law
firm of Richards, Watson & Gershon to represent the City of San Bernardino
regarding cable franchise transfers to Time Warner Cable.
On June 14,2005, the city received requests from Time Warner to transfer two existing
Adelphia Cable franchises (including a preliminary transfer from Adelphia to Comcast) to Time
Warner Cable. This filing has created a 180 day window in which to approve or deny the requests.
If the City takes no action, the franchises will automatically be transferred pursuant to Federal law .
The Adelphia franchises are currently in a state of non-compliance, including more than
$200,000 in unpaid franchise fees. It is anticipated that upon completion of a scheduled audit, this
amount could double. The transfer process provides the opportunity for the City to gain compliance
with the existing franchise agreements while possibly allowing the City to gain additional
concessions from the new franchise.
The transfer application contains a very large amount of specialized technical and financial
information. Since the franchise transfer process requires specialized legal advise, the City
Attorney's office is recommending that the City hire William B. Rudell of the law firm of Richards,
Watson & Gershon. The City Attorney's office has found that Mr. Ruddell is by consensus
considered the "guru" in Southern California for this type of law. This firm is representing other
Southern California cities involved in similar transfer negotiations with Time Warner.
Attached hereto is the Professional Services Agreement which reflects such approval,
including a ceiling of $25,000 on attorney fees and the requirement of regular status reports.
It is requested by the City Attorney that the following floor motion be adopted authorizing
the hiring of Richards, Watson & Gershon and that the Mayor is authorized to execute the
Professional Services Agreement on behalf of the City of San Bernardino.
''That the Mayor of the City of San Bernardino and Common Council authorize the hiring
of Richards, Watson & Gershon and that the Mayor of the City of San Bernardino and Common
Council are hereby authorized and directed to execute on behalf of the City of San Bernardino the
Professional Services Agreement with the law firm of Richards, Watson & Gershon to represent the
City of San Bernardino regarding cable franchise transfers to Time Warner Cable."
- ,"",.,"'"'_.,p.c.. ,c.
o
o
o
~-
._" -. -.-
>><
....._~---
~;o-~
to)~Y
RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING THE HIRING OF RICHARDS, WATSON & GERSHON
3 TO REPRESENT THE CITY REGARDING FRANCHISE TRANSFERS TO TIME
WARNER CABLE.
4
5
6
7
8
9
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino and Common Council approve the
hiring of Richards, Watson & Gershon to represent the City of San Bernardino regarding franchise
transfers to Time Warner Cable.
IO
/II
11
/II
12
/II
13
III
14
/II
15
/II
16
III
17
/II
18
/II
19
III
20
/II
21
III
22
III
23
/II
24
25
26
27
28
MR:ar [Franchise Transfers Resolution 1 ] 1
_,,"=c,c",,"'C
"" "
c ~
, _O"""C"".,'C
" -'"~
o RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO APPROVING THE HIRING OF RICHARDS, WATSON & GERSHON
TO REPRESENT THE CITY REGARDING FRANCHISE TRANSFERS TO TIME
3 WARNER CABLE.
20
21
22
23 Approved as to form and
legal content:
24
25
26
0 27
28
MR:ar [Franchise Transfers,ResolutJon I ] 2
o
4
5
6
7
8
9
10
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting
thereof, held on the
day of
AYES
, 2005, by the following vote, to wit:
11
COUNCIL MEMBERS:
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MCCAMMACK
NAYS
ABSTAIN ABSENT
12
13
14
15
16
17
18
19
CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2005.
JUDITH VALLES, Mayor
City of San Bernardino
~n"""_"""""""
C)
o
o
"----c>..-"'-_"::'_':__"'2;~=.''''"'~".~.,.,t\\''''<''''''''''"''''';w:~
/1J~,J6lIA ~ fi fB)~
RESOLUTION NO. ~ ~ U- U
2 RESOLUTION OF THE MA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN RICHARDS, WATSON & GERSHON AND THE
CITY OF SAN BERNARDINO TO REPRESENT THE CITY REGARDING FRANCHISE
4 TRANSFERS TO TIME WARNER CABLE.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between Richards, Watson
9 & Gershon and the City of San Bernardino for legal services, a copy of which is attached hereto
10 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
11 SECTION 2. The authorization granted hereunder shall expire and be void and of no
12 further effect if the agreement is not executed by both parties and returned to the office of City
13 Clerk within sixty (60) days following effective date of the resolution.
14 /11
15 III
16 I I I
17 III
18 III
19 III
20 III
21 III
22 III
23 III
24 III
25 III
26 III
27 III
28
MR:ar [Franchise Transfers Resolution2] 1
- "-','---"'r--
- _"WH,"_r-~~--
-'--~~----'-w-,w-,,__'---___-- -
-"
o
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN RICHARDS, WATSON & GERSHON AND THE
CITY OF SAN BERNARDINO TO REPRESENT THE CITY REGARDING FRANCHISE
3 TRANSFERS TO TIME WARNER CABLE.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
6 thereof, held on the
day of
AYES
NAYS
meeting
, 2005, by the following vote, to wit:
ABSTAIN ABSENT
7 COUNCIL MEMBERS:
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
11 DERRY
12 KELLEY
o
13 JOHNSON
14 MCCAMMACK
15
16
17
18
19
CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2005.
20
21
22
Approved as to form and
23 legal content:
24
25
26
0 27
28
MR:ar [Franchise Transfers_ResoJUl1on2] 2
JUDITH V ALLES, Mayor
City of San Bernardino
--'~:' ~-""-~'~-"~-"'l'lr'"'''~'''~'~
o
1
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
o
o
-~'''-'"'11
.. -,-,,,,_.~
~~~
",~'m ..
~,~ "T""'''~~
PROFESSIONAL SERVICES AGREEMENT
Franchise Transfers From Adelphia and Century- TCI
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
RICHARDS, WATSON & GERSHON (hereinafter "RW &G") are the parties to this Agreement.
2. R W &G will be representing the following entities and persons in this matter:
CITY OF SAN BERNARDINO related to transfer application to Time Warner Cable and its
affiliates by Adelphia Communications, Comcast Communications and their affiliates. R W &G
shall not represent any client in any type of claim against the CITY without prior written approval
to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
3. RW &G shall be paid at the hourly rates set forth below:
Attorneys - $225.00 per hour
The amounts expended under this agreement for attorneys fees shall not exceed
$25,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
RW &G may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
of reimbursement for photocopying, telephone charges, and postage.
6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
return), then RW&G shall not be entitled to reimbursement for mileage and parking fees.
7. R W &G shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of this representation. RW&G may, if
it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
periodic statement. or it may forward the consultant's bill to CITY with a request that the CITY pay
it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office
MRar [Professional Services Agreement]
1
o
o
o
~e'_"'OC.."""""",~~". ,,_
-
~- . ""n- "" -"-~"'-'
-
1 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
2 to set reserves, including, without limitation, potential liability exposure and percentage of fault
3 shall be included.
4 9. In the event litigation is initiated, the following duties apply:
5 a) copies of all opinions, pleadings, discovery and motions shall be provided
6 to the City Attorney's Office which may reproduce same and provide
7 copies to other parties or attorneys in this, or other litigation.
8 b) Copies of any correspondence and other documents sent in this matter
9 shall also be provided to the CITY through the City Attorney's Office.
10 c) Any and all settlements or agreements shall require CITY approval.
11 Request for settlement authority shall be made through the City Attorney's
12 Office which shall obtain the necessary CITY approvals.
13 d) Final billing shall be accompanied by copies of the a Final Agreement,
14 Release and any other final documents.
15 10. Only William B. Rudell of RICHARDS, WATSON & GERSHON or other senior
16 attorney approved by the CITY shall represent the City in front of any agency, tribunal or Court.
17 II. No client development costs are to be included in billings.
18 12. No continuing education expenses are to be included in billings.
19 13. Either party may terminate this contract at will. R W &G will continue to represent
20 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
21 another attorney.
22 14. RW&G is an independent contractor as to the CITY.
23 15. R W &G shall maintain the following types of insurance with limits as shown:
24 a) Workers Compensation as required by the laws of the State of
25 California, including Employment Liabilitywith $250,000 limits
26 covering all persons providing service on behalf of R W &G and
27 all risks to such persons under this Agreement. R W &G shall
28
MR.ar [Professional Services Agreement]
2
__"=', ",~'rr,"n
o
o
o
" '
C'
, 'C' '," ,_ ~.
.. ..' "---,-~,'-
..~r7"""~
1
require its Workers Compensation carrier to waive all rights of
2
subrogation against the CITY and its officers and employees and
any others for whom services are being provided under this
3
4
Agreement
5
6
b)
Comprehensive General and Automobile Liability Insurance
7
coverage to include contractual coverage and automobile
coverage for owned, hired and non-owned vehicles. The policy
8
shaH have at least a combined single limit of $1,000,000 for
bodily injury and property damage.
Professional Liability Insurance with limits of at least $1 ,000,000
9
10
c)
11
per claim. In lieu of naming the CITY as an additional insured,
12
the policy may be endorsed as foHows:
"Insurance coverage afforded by this policy shaH also apply to
the liability assumed by the Insured under the Agreement with
the CITY OF SAN BERNARDINO for legal defense services,
provided such liability results from an error, omission or
negligent act of the insured, its officers, employees, agents or
subcontractors. AH other provisions of this policy are to remain
unchanged. "
13
14
15
16
17 R W &G shall furnish certificates of insurance and certified copies of all policies
18 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
19 prior to the commencement of performance of services hereunder, which certificates shaH provide
20 that such insurance shaH not be terminated or expire without thirty (30) days written notice to the
21 City Attorney's Office, and shaH maintain such insurance from the time R W &G commences
22 performance of services hereunder until the completion of such services.
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shaH
25 obtain additional endorsements naming the CITY and aH parties represented under this Agreement,
26
27
28
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
MRar [Professional Services Agreement]
3
~, ",.Pf~"~'
o
13
o 14
24
. "
--
""~",.~.,~~~'--- ~ ..
,......,.......".,.,
-~_.~
1
AII policies required above are to be primary and non-contributing with any
2 insurance or self-insurance programs carried or administered by the CITY or other parties
3 represented under this Agreement.
4
16.
AII communications and bilIings to the CITYare to be directed as folIows:
5
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
6
7
DA TED:
,2005
RICHARDS, WATSON & GERSHON
8
9
10
By: WilIiam B. RudelI, Esq.
11
12
DATED:
,2005
CITY OF SAN BERNARDINO
15
By: Judith Valles, Mayor
16
17
18
19
20
21
22
23 Approved as to form and
legal content:
JAMES F. PENMAN,
25 City Attorney
o
26
27
28
."1
/ ~
0C"2.1.,,--c......
MRar [Professional ServIces Agreement]
4