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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Professional Services Agreement between the
City of San Bernardino and the law firm of Rutan &
Tucker, LLP, for legal services regarding a claim for a
utility user tax refund filed by the City of Riverside.
Dept: CITY ATTORNEY
Date: September 18, 2005
Synopsis of Previous Council Action:
None.
Recommended motion:
Adopt the Resolution.
?-.
Contact person: Henrv Emneiio. Jr.
Supporting data attached: Staff Reoort
Phone:
5355
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Council Notes: R-eso, d-DDb -3?>~
Finance:
Agenda Item NO.----J...{p
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F:IEMPENOICoonciI\RUT AN & TUCKER\Reque8l for Cooncil Action.wpd
STAFF REPORT
Council Meeting Date: SeDtember 18. 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: September 14, 2006
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the law
firm of Rutan & Tucker, LLP, for legal services regarding a claim for a utility user
tax refund filed by the City of Riverside.
The Mayor and Common Council have requested that outside Special Legal Counsel be retained to
handle this matter.
Attached is a Professional Services Agreement with the law firm of Rutan & Tucker LLP, Costa
Mesa, CA, for legal services regarding a claim for a utility user tax refund filed by the City of
Riverside. Copies of the resumes of Joel D. Kuperberg and Philip D. Kohn, both Partners with
Rutan & Tucker, LLP, are available at the City Attorney's Office. Both attorneys each have more
than twenty-five years experience in municipal law, including utility user tax matters.
We respectfully request that the Mayor and Common Council adopt the attached Resolution
approving this Agreement.
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COpy
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH
3 RUTAN & TUCKER, LLP FOR LEGAL SERVICES REGARDING A CLAIM FOR
UTILITY USER TAX REFUND BY THE CITY OF RIVERSIDE.
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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 is hereby authorized and directed
to execute on behalf of said City a Professional Services Agreement between Rutan & Tucker,
LLP and the City of San Bernardino for legal services regarding a claim for utility user tax refund
by the City of Riverside, a copy of which is attached hereto marked Exhibit" A" and incorporated
herein.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
further effect if the Agreement is not executed by both parties and returned to the Office of the
City Clerk within sixty (60) days following the effective date of this Resolution.
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F:\EMPENO\Council\RUT AN & TUCKER\Resolution.wpd 1
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH
RUTAN & TUCKER, LLP FOR LEGAL SERVICES REGARDING A CLAIM FOR
3 UTILITY USER TAX REFUND BY THE CITY OF RIVERSIDE.
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5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
meeting
, 2006, by the following vote, to wit:
7 thereof, held on the day of
8 COUNCIL MEMBERS: AYES NAYS
9 ESTRADA
10 BAXTER
II (VACANT)
12 DERRY
13 KELLEY
14 JOHNSON
. IS MCCAMMACK
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ABSTAIN ABSENT
Rachel G. Clark, City Clerk
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The foregoing Resolution is hereby approved this
day of
,2006.
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Approved as to form:
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26 J MES F. PENMAN
27 City Attorney
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F:\EMPENO\Council\RUTAN & TUCKER\Resolution.wpd 2
PATRICK J. MORRIS, Mayor
City of San Bernardino
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I PROFESSIONAL SERVICES AGREEMENT
2 I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of Rutan
3 & Tucker, LLP, 611 Anton Blvd., Suite 1400, Costa Mesa, CA 92626-1931 (hereinafter "RUTAN")
4 are the parties to this Agreement.
5 2. RUTAN will be advising the CITY related to a claim for a utility user tax refund filed
6 by the City of Riverside. The CITY consents to RUTAN undertaking matters for any party whose
7 interests in that matter may be adverse to the CITY, provided that such matters are unrelated to
8 utility user taxes paid to the City of San Bernardino, and so long as such undertaking does not
9 involve confidential information which RUT AN gained from its work for the CITY pursuant to this
10 Agreement.
II 3. RUT AN shall be paid at the hourly rates set forth below:
12 Attorneys - Composite rate of$270.00 per hour for partners and associates.
13 Paralegals - Composite rate of$120.00.
14 The amounts expended under this agreement for attorneys fees shall not exceed
15 $15,000 without further approval of the Mayor and Common Council.
16 4. Bills shall be submitted at least on a monthly basis and no later than the 5'h day of
17 each succeeding month.
18 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20 RUTAN may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
21 of reimbursement for photocopying, telephone charges, and postage.
22 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and return),
23 then RUT AN shall not be entitled to reimbursement for mileage and parking fees.
24 7. RUT AN shall obtain approval from the CITY to retain expert consultants and other
25 professionals (not including court reporters) for purposes of representing the City pursuant to this
26 agreement. RUTAN may, if it chooses, pay the fees and charges of such consultants and seek
27 reimbursement from CITY on its periodic statement, or it may forward the consultant's bill to CITY
28 with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without
F:\EMPENO\Council\RUTAN & ruCKER\Professional Services Agreement.R&T.wpd
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prior approval of the CITY'S Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office whenever
3 any significant event occurs, and in any event at least quarterly.
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Copies of all opinions shall be provided to the City Attorney's Office.
Only Joel Kuperberg or Philip Kohn of RUT AN & TUCKER, LLP or other attorneys
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6 and paralegals working under them shall perform the legal work set forth in this agreement.
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No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
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Either RUT AN or the CITY may terminate this contract at will. RUT AN will
10 continue to represent the CITY on the terms and conditions in this Agreement until the file is
11 transferred to another attorney.
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RUTAN is an independent contractor as to the CITY.
RUTAN shall maintain the following types of insurance with limits as shown:
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a)
Workers Compensation as required by the laws of the State of
15 California, including Employment Liability with $250,000 limits covering all persons
16 providing service on behalf of RUTAN and all risks to such persons under this
17 Agreement. RUT AN shall require its Workers Compensation carrier to waive all
18 rights of subrogation against the CITY and its officers and employees and any others
19 for whom services are being provided under this Agreement.
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b)
Comprehensive General and Automobile Liability Insurance coverage
21 to include contractual coverage and automobile coverage for owned, hired and non-
22 owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
23 for bodily injury and property damage.
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c)
Professional Liability Insurance with limits of at least $1,000,000 per
25 claim. In lieu of naming the CITY as an additional insured, the policy may be
26 endorsed as follows:
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"Insurance coverage afforded by this policy shall also apply to the liability
assumed by the Insured under the Agreement with the CITY OF SAN
BERNARDINO for legal services, provided such liability results from an error,
F:\EMPENO\Council\RUT AN & TUCKER\Professional Services Agreement.R&T.wpd
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omISSIOn or negligent act of the insured, its officers, employees, agents or
subcontractors. All other provisions of this policy are to remain unchanged."
RUTAN shall furnish certificates of insurance and certified copies of all policies and
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
to the commencement of performance of services hereunder, which certificates shall provide that
such insurance shall not be terminated or expire without thirty (30) days written notice to the City
Attorney's Office, and shall maintain such insurance from the time RUT AN commences performance
of services hereunder until the completion of such services.
All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
All policies required above are to be primary and non-contributing with any insurance
or self-insurance programs carried or administered by the CITY or other parties represented under
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this Agreement.
16. All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
17.
RUTAN has made no representations, promises, warranties or guarantees to CITY,
21 expressed or implied, regarding the outcome of CITY'S matter, and nothing in this Agreement shall
22 be construed as such a representation, promise, warranty or guarantee.
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F:\EMPENO\Council\RUT AN & TUCKER\Professional Services Agreement.R&T.wpd
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9 DATED: ,2006
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11 Approved as to form:
12 JAMES F. PENMAN,
City Attorney
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14 By: t~dJ.. /1
If
.i 'Zt....h~td7--:y
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18. This Agreement represents the entire understanding of CITY and RUT AN as to those
matters contained herein, No prior oral or written understanding shall be of any force or effect with
3 respect to those matters covered by this Agreement This Agreement may not be modified, altered
4 or amended except in writing by CITY and RUT AN.
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DATED:
,2006
RUTAN & TUCKER, LLP
By: Joel Kuperberg
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\EMPENO\Council\RUTAN & TUCKER\Professional Services Agreement.R&T.wpd
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): q ( I ~ I do Item #
Vote: ~Ayes\ );)')Lf)~ --f:J
Change to ~ti~ ~0(rtJ~7crIVQ~~
NuUNoid After: days /
Resolution # On Attachments~
PUBLISH D POST D
Iw
Resolution #
Abstain --e:r-
dDD~ ~ ~23
Absenr&=
Companion Resolutions
Note on Resolution of attachment stored separately: D
RECORD W/COUNTY D
By:
Date Sent to Mayor:
Date of Mayor's Signature:
Date of Clerk/CDC Signature:
Reso. Log Updated: Ila'"
Seal Impressed: Jii(
Reso. # on Staff Report ~
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Q- /9- 00
Date Returned:
iOjd/Ofo
Not Returned: D
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached: Yes A No By_
Updated Prior Resolutions (Other Than Below): Yes No By_
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Yes No By_
..
Updated CDC Personnel Folders (5557): Yes No By_
Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No By_
Copies Distributed to:
Animal Control 0 EDA D Information Services D
City Administrator D Facilities ~ Parks & Recreation D
City Attorney r:{ Finance Police Department D
Code Compliance D Fire Department D Public Services D
Development Services D Human Resources D Water Department D
Others:
Notes:
Ready to File: _
Date:
Revised 12/18/03
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
September 19, 2006
YOUR COPY
TO:
Henry Empeiio, Jr., Senior Deputy City Attorney
FROM:
Sandra Medina, Assistant to the City Clerk
RE:
Transmitting Documents - Resolution No. 2006-333
At the Mayor and Common Council meeting of September 18, 2006, the City of San Bernardino
adopted Resolution No. 2006-333 - Resolution approving a Professional Services Agreement
with Rutan & Tucker, LLP for legal services regarding a claim for Utility User Tax Refund by
the City of Riverside.
Attached are one (1) original agreement and two (2) duplicate original agreements. Please obtain
signatures in the appropriate locations and return the ORIGINAL agreement to the City Clerk's
Office as soon as possible, to Dodie Otterbein, Records Management Coordinator. Please
forward one duplicate agreement to the other party and retain one duplicate agreement for your
records.
Please be advised that the agreement will be null and void if not executed within sixty (60)
days, or by November 17, 2006.
If you have any questions, please do not hesitate to contact Dodie Otterbein at ex!. 3215. Thank
you. r'. "
(,.JJan d 1'1 C,}'vV) d1/; ,,'\
Sandra Medina
Assistant to the City Clerk
Signed:
t of the above mentioned documents.
Date:
Please sign and return