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HomeMy WebLinkAboutS01-City Attorney .,' ... C1TY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a Professional Services Agreement between Best, Best & Krieger and the City of San Bernardino to advise the City Attorney's Office concerning the review, application and enforcement of its adult entertainment license ordinance and related matters. Dept: CITY ATTORNEY ORI'~~/,'v'AL Date: November 15,2001 Synopsis of Previous Council Action: None. Recommended motion: That said Resolution be adopted. 71- Signature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: v~~-<l.?(--{\ \-.3~Cj Agenda Item No. S-I 11-19-01 STAFF REPORT Council Meeting Date: November 19. 2001 TO: FROM: DATE: AGENDA: Mayor and Common Council James F. Penman, City Attorney November 19,2001 Item No. SI: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a Professional Services Agreement between Best, Best & Krieger and the City of San Bernardino to advise the City Attorney's Office concerning the review, application and enforcement of its adult entertainment license ordinance and related matters. Attached hereto is the Professional Services Agreement with Best, Best & Krieger so it may advise the City Attorney's Office concerning the review, application and enforcement ofthe City's adult entertainment license ordinance and related matters. It contains an initial threshold limit of $10,000.00. It is requested by the City Attorney that the floor motion be adopted so that the Mayor is authorized to execute said Professional Services Agreement on behalf of the City of San Bernardino. I RESOLUTION NO. "- 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT 3 BETWEEN BEST, BEST & KRIEGER AND THE CITY OF SAN BERNARDINO TO ADVISE THE CITY ATTORNEY'S OFFICE CONCERNING THE REVIEW, APPLICA nON AND ENFORCEMENT OF ITS 4 ADULT ENTERTAINMENT LICENSE ORDINANCE AND RELATED MATTERS. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCn.. OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION I. 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 Best, Best & Krieger 9 and the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit 10 "A" and incorporated herein by reference as fully as though set forth at length. II SECTION 2. The authorization granted hereunder shall expire and be void and of no further 12 effect if the agreement is not executed by both parties and returned to the office of the City Clerk 13 within sixty (60) days following the effective date of the resolution. 14 III r'~" "'- 15 1/ I 16 III 17 1/ I 18 III 19 III 20 III 21 III 22 11/ 23 1/ I 24 1/ I 25 III 26 1/ I 27 III "'- 28 1/ I JI""'"''' RLS/js [BBK.RES] I '- c 17 18 19 20 21 22 23 24 25 26 27 ,.... '- 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT 2 BETWEEN BEST, BEST & KRIEGER AND THE CITY OF SAN BERNARDINO TO ADVISE THE CITY ATTORNEY'S OFFICE CONCERNING THE REVIEW, APPLICATION AND ENFORCEMENT OF ITS 3 ADULT ENTERTAINMENT LICENSE ORDINANCE AND RELATED MATTERS. 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 meeting thereof, 6 held on the , 200 I, by the following vote, to wit: day of 7 COUNCIL MEMBERS: 8 ESTRADA 9 LIEN 10 MCGINNIS 11 SCHNETZ 12 SUAREZ 13 ANDERSON 14 MCCAMMACK 15 16 ABSTAIN ABSENT AYES NAYS CITY CLERK The foregoing Resolution is hereby approved this day of ,2001. JUDITH V ALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney 1 ,) By: ; ~.~ 7' /i::::=z~~.--<~ /j (j RLS/js IBBK.RESJ 2 - 1 PROFESSIONAL SERVICES AGREEMENT 2 I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 3 BEST, BEST & KRIEGER LLP (hereinafter "BB&K") are the parties to this Agreement. 4 2. BB&K will advise the City Attorney's Office concerning the review, application 5 and enforcement of the City's adult entertainment license ordinance and related matters. BB&K 6 shall not represent any client in any type of claim against the CITY without prior written approval 7 to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 8 3. BB&K shall be paid at the hourly rates set forth below: 9 Partners - $185.00 per hour; 10 Senior Associates - $150.00 per hour; 11 Junior Associates - $125.00 per hour; and 12 Paralegals - $100.00 per hour. 13 The amounts expended under this Agreement for attorneys fees shall not exceed 14 $10,000 without further approval of the Mayor and Common Council. 15 4. Bills shall be submitted at least quarterly. 16 5. The actual cost for any fees, telephone charges, photocopying, postage, lodging, 17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 18 BB&K may include a single charge in an amount not to exceed four percent (4%) of fees in lieu 19 of reimbursement for photocopying, telephone charges, and postage. 20 6. If attorney's fees are charged "portal to portal" (e.g., from office to office and 21 return), then BB&K shall not be entitled to reimbursement for mileage and parking fees. 22 7. BB&K shall obtain approval from the CITY to retain expert consultants and other 23 professionals for purposes of completing its services under this Agreement. BB&K may, if it 24 chooses, pay the fees and charges of such consultants and other professionals and seek 25 reimbursement from CITY on its periodic statement, or it may forward the bill(s) of the afore- 26 mention consultants and other professionals to CITY with a request that the CITY pay it directly. 27 Consultants and other professionals shall not bill the CITY directly without prior approval of the 28 CITY'S Finance Department. c.. - RLS/js [BBK.AGR] 1 - c c 1 8. All opinions, reports, and other documents generated by BB&K as a result of 2 completing its services under this Agreement shall be submitted directly to the City Attorney. 3 9. 10. 11. 12. 13. 14. Either party may terminate this contract at will. BB&K is an independent contractor as to the CITY. BB&K shall maintain the following types of insurance with limits as shown: 4 No client development costs are to be included in billings. No continuing education expenses are to be included in billings. Final billing shall be accompanied by all final documents. 5 6 7 8 9 a) Workers Compensation as required by the laws of the State 10 of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of BB&K and all risks to such persons under this Agreement. BB&K shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. 11 12 13 14 15 16 b) Comprehensive General and Automobile Liability 17 Insurance coverage to include contractual coverage and automobile 18 coverage for owned, hired and non-owned vehicles. The policy shall have 19 at least a combined single limit of $1,000,000 for bodily injury and property damage. 20 21 c) Professional Liability Insurance with limits of at least 22 $1,000,000 per claim. In lieu of naming the CITY as an additional 23 insured, the policy may be endorsed as follows: 24 "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, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions of this policy are to remain unchanged." 25 26 27 28 BB&K shall furnish certificates of insurance and certified copies of all policies and RLS/js [BBK.AGR] 2 "- r" '- .-.. \- 1 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 2 to the commencement of performance of services hereunder, which certificates shall provide that 3 such insurance shall not be terminated or expire without thirty (30) days written notice to the City 4 Attorney's Office, and shall maintain such insurance from the time BB&K commences performance 5 of services hereunder until the completion of such services. 6 All policies, with respect to the insurance coverage above required, except for the 7 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 8 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 9 their employees, agents, volunteers and officers as additional named insured with respect to 10 liabilities arising out of the performance of services hereunder. 11 h..l! policies required above are to be primary and non-contributing with any 12 insurance or self-insurance programs carried or administered by the CITY or other parties 13 represented under this Agreement. 14 15. All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "0" Street San Bernardino, CA 92418 15 16 17 DATED: ,2001 BEST, BEST & KRIEGER LLP 18 19 20 By: 21 DATED: ,2001 CITY OF SAN BERNARDINO 22 23 24 By: Approved as to form and 25 legal content: 26 JAMES F. PENMAN, City Attorney r ,. :j By: ,,yt-.,...., // RJjj8"(BBK.AGRJ 3 27 --1 T !C""1~""~<..., 28 EXHIBIT "A" 1 ~. 2 I. PROFESSIONAL SERVICES AGREEMENT The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 3 BEST, BEST & KRIEGER LLP (hereinafter "BB&K") are the parties to this Agreement. 4 2. BB&K will advise the City Attorney's Office concerning the review, application 5 and enforcement of the City's adult entertainment license ordinance and related matters. BB&K 6 shall not represent any client in any type of claim against the CITY without prior written approval 7 to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 8 3. BB&K shall be paid at the hourly rates set forth below: 9 Partners - $185.00 per hour; 10 Senior Associates - $150.00 per hour; 11 Junior Associates - $125.00 per hour; and 12 Paralegals - $100.00 per hour. 13 The amounts expended under this Agreement for attorneys fees shall not exceed c 14 $10,000 without further approval of the Mayor and Common Council. 15 4. 5. Bills shall be submitted at least quarterly. The actual cost for any fees, telephone charges, photocopying, postage, lodging, 16 17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 18 BB&K may include a single charge in an amount not to exceed four percent (4%) offees in lieu 19 of reimbursement for photocopying, telephone charges, and postage. 20 6. If attorney's fees are charged "portal to portal" (e.g., from office to office and 21 return), then BB&K shall not be entitled to reimbursement for mileage and parking fees. 22 7. BB&K shall obtain approval from the CITY to retain expert consultants and other 23 professionals for purposes of completing its services under this Agreement. BB&K may, if it 24 chooses, pay the fees and charges of such consultants and other professionals and seek /' r. '-' 25 reimbursement from CITY on its periodic statement, or it may forward the bill(s) of the afore- 26 mention consultants and other professionals to CITY with a request that the CITY pay it directly. 27 Consultants and other professionals shall not bill the CITY directly without prior approval of the 28 CITY'S Finance Department. RLS/js [BBK.AGRj 1 .~ 10 11 12 13 ~~~ I '- 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ....... 28 EXHIBIT "A" 1 8. All opinions, reports, and other documents generated by BB&K as a result of 2 completing its services under this Agreement shall be submitted directly to the City Attorney. 3 9. 10. II. 12. 13. 14. BB&K shall maintain the following types of insurance with limits as shown: 4 No client development costs are to be included in billings. No continuing education expenses are to be included in billings. 5 Final billing shall be accompanied by all final documents. 6 Either party may terminate this contract at will. 7 BB&K is an independent contractor as to the CITY. 8 9 a) Workers Compensation 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 BB&K and all risks to such persons under this Agreement. BB&K shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. hi Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of $1,000,000 for bodily injury and property damage. c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "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, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions of this policy are to remain unchanged." BB&K shall furnish certificates of insurance and certified copies of all policies and RLS~s [BBK.AGR] 2 - .. - c EXHIBIT "A" 1 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 2 to the commencement of performance of services hereunder, which certificates shall provide that 3 such insurance shall not be terminated or expire without thirty (30) days written notice to the City 4 Attorney's Office, and shall maintain such insurance from the time BB&K commences performance 5 of services hereunder until the completion of such services. 6 All policies, with respect to the insurance coverage above required, except for the 7 Workers C~pensation insurance coverage and professional liability coverage, if applicable, shall 8 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 9 their employees, agents, volunteers and officers as additional named insured with respect to 10 liabilities arising out of the performance of services hereunder. 11 All policies required above are to be primary and non-contributing with any 12 insurance or self-insurance programs carried or administered by the CITY or other parties 13 represented under this Agreement. 14 15. 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 15 16 17 DATED: ,2001 BEST, BEST & KRIEGER LLP 18 19 20 By: 21 DATED: ,2001 CITY OF SAN BERNARDINO 22 23 24 By: Approved as to form and 25 legal content: 26 JAMES F. PENMAN, City Attorney r 27 '- 28 By: RLSljs [BBK.AGR] 3 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: November 21,2001 TO: Huston T. Carlyle, Jr., St. Assistant City Attorney FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2001-349 At the Mayor and Common Council meeting of November 19,2001, the City of San Bernardino adopted Resolution 2001-349 - Resolution authorizing the execution of a professional services agreement between Best, Best & Krieger and the City of San Bernardino to advise the City Attorney's Office concering the review, application and enforcement of its adult entertainment license ordinance and related matters. Attached is one (1) original agreement. Please obtain signatures in the appropriate location and return the original agreement to the City Clerk's Office as soon as possible, to my attention. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary Date: II /2-f / 0 I I Please sign and return I hereby ac Signed: CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: January 4, 2002 TO: Huston T. Carlyle, Jr., Sr. Assistant City Attorney FROM: Michelle Taylor, Senior Secretary RE: Resolution 2001-349 - Agreement with Best, Best & Krieger Our office has not received the executed agreement with Best, Best & Krieger to advise the City Attorney's Office concerning the review, application and enforcement of its adult entertainment license ordinance and related matters, which was approved at the Mayor and Common Council meeting held on November 19,2001. Please forward the executed agreement to the City Clerk's office, to my attention; otherwise, please submit a memo detailing its status. Note: The resolution and agreement will be null and void if not executed by January 18,2002. If you have any questions, please call me at ext. 3206. ... /1"9 'j:'" BEST BEST & KRIEGER LLP A CALIFORNIA LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS INDIAN WELLS (760) 568-26 I I LAWYERS 3750 UNIVERSITY AVENUE POST OFFICE BOX 1026 RIVERSIDE, CALIFORNIA 92502-1028 (909) oe6-1 450 (909) 680-3063 FAX BBKLAW.COM SAN DIEGO <(19) 525-1300 ONTARIO (909) 989-8584 ORANGE COUNTY (714) 9,:)9-5940 SACRAMENTO (9 I 51 974-3400 MARCO A. MARTINEZ MAMARTINEZ@BBKLAW.COM December 4, 2001 VIA FACSIMILE AND FIRST CLASS MAIL (909) 384-5238 James F. Penman, City Attorney City of San Bernardino 300 North "0" Street, Sixth Floor San Bernardino, CA 92418-0001 Re: Representation on Adult Entertainment License Ordinance and Related Matters Dear Mr. Penman: Enclosed please find the original Professional Services Agreement which has been executed by John E. Brown on behalf of Best Best & Krieger LLP. Best Best & Krieger LLP looks forward to assisting the City of San Bernardino in matters related to its adult entertainment license ordinance. As your cover letter requests, we will await further direction from your staff regarding the services you wish us to provide. In the meantime, please feel to contact Bob Hargreaves at (760) 568-7611 or me at (909) 686-1450 with any questions or concerns. Sincerely, f-A~ for BEST BEST & KRIEGER LLP MXMJss Enclosure cc: Huston T. Carlyle, Jr., Senior Assistant City Attorney R VPUB\\L"{M\623801 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: January 9, 2002 TO: Finance FROM: Michelle Taylor, Senior Secretary RE: Resolution 2001-349 - Best, Best & Krieger LLP CC: Attached is a fully executed copy of the professional services agreement with Best, Best & Krieger LLP to advise the City Attorney's Office concerning the review, application and enforcement of its adult entertainment license ordinance and related matters. If you have any questions, please call me at ext. 3206. ~. .. :~ ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): ~ Item # S I Vote: Ayes \ -S ( t") Nays..e- Change to motion to amend original documents: Resolution # 2m \ -~ q Abstain .fr- Absent ~ Reso. # On Attachments: / Contract term: - NullNoid After: (",0 OA-{:::' /1- /'1( -0 '2.. Note on Resolution of Attachment stored separately: ~ Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By: Date Sent to Mayor:\>-! \ \ ~ t> \ Date of Mayor's Signature: ~ Date of Clerk/CDC Signature: ~L \ ) D I Reso. Log Updated: V Seal Impressed: v" Date Memo/Letter Sent for Signature: .ftH1ay Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: ll-J 1-6\ 1-4-0~ See Attached:......... Date Returned: See Attached: Y See Attached: I-j;--();:}- Request for Council Action & Staff Report Attached: Yes -L No By Updated Prior Resolutions (Other Than Below): Yes No V 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: City Attorney V Code Compliance Dev. Services EDA Finance .,/" MIS Parks & Rec. Police Public Services Water Others: Notes: BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.) Ready to File: ..!l:l:r.- Date: 1-"1 -O~ Revised 01/12/01