December 20, 2024
5:00 p.m.
In Chambers
Council Chambers
99 E. Ramsey Street
Banning, CA 92220
1. CALL TO ORDER
2. PUBLIC COMMENTS - Agenda Items Only
3. WORKSHOP
3.1 Resolution No. 2024-200, Public Employee Appointment - Pursuant to Government Code section 54957
Title: Interim City Attorney
4. ADJOURNMENT
AGENDA
CITY COUNCIL - SPECIAL MEETING (WORKSHOP)
CITY OF BANNING, CALIFORNIA
The following information comprises the agenda for the regular meeting of the Banning City Council, a joint meeting of the City Council and Banning Utility Authority, and the Banning City Council sitting in its capacity as the Banning Successor Agency Board.
Per the City of Banning Manual of Procedural Guidelines, matters taken up by the Council before 10 p.m. may be concluded, but no new matters shall be taken up except upon a majority vote of the council members present and voting. Such an extension shall only be valid for one hour and each hour thereafter shall require a renewed action for the meeting to continue.
Recommendation: Approve Resolution No. 2024-200, Authorizing the City Manager to sign Engagement Letter for legal services with the law firm of Slovak Baron Empey Murphy Pinkney LLP.
AFFIDAVIT • DECLARACIÓN JURADA
IT IS HEREBY CERTIFIED under the laws of the State of California that the above agenda was posted on the City's website (www.banningca.gov) as well as the Bulletin Board at Banning City Hall, located at 99 E Ramsey Street, Banning, CA 92220, at least 24 hours in advance of the meeting.
__________________________
Caroline Patton, Administrative City Clerk
Secretario adjunto de la ciudad
City Council - Special Meeting (Workshop) Agenda
December 20, 2024
1 PUBLIC NOTICE • NOTICIA PÚBLICA
Meeting Agendas and Notices
Interested in receiving email and/or text notifications of upcoming City Council meetings? Sign up for meeting notifications through the City's website. Pursuant to amended Government Code §54957.5(b), staff reports and other public records related to open session agenda items are available on the City's website (www.banningca.gov/).
Public Comment
Agenda Items
Any member of the public may address this meeting of the City Council on any item appearing on the agenda. A five-minute limitation shall apply to each member of the public and no member of the public shall be permitted to share their time with any other person.
Non-Agenda Items
Any member of the public may address this meeting of the City Council on any item which does not appear on the regular meeting agenda but is of interest to the general public and is an item upon which the City Council may act. A three-minute limitation shall apply to each member of the public and no member shall be permitted to share their time with any other person. No action shall be taken, nor discussion held by the City Council, on any item which does not appear on the agenda, unless the action is otherwise authorized in accordance with the provisions of subdivision (b) of §54954.2 of the Government Code.
Special Assistance/Accessibility Requests
In compliance with the Americans with Disabilities Act, any member of the public may request that the agenda and agenda packet be mailed to them. If you need special assistance to participate in this meeting (such as translation services), please contact the City Clerk's Office. Advanced notification of at least 48 hours prior to the meeting will allow the city to make arrangements to ensure your accessibility.
¿Necesita servicios de traducción para participar? Contacto Oficina del Secretario de la Ciudad.
CONTACT • CONTACTO
City Clerk's Office | 951-922-3102 | [email protected] 99 East Ramsey Street, Banning, California 92220
City Council - Special Meeting (Workshop) Agenda
December 20, 2024
2 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director Doug Schulze, City Manager
MEETING DATE: December 20, 2024
SUBJECT: Resolution No. 2024-200, Public Employee Appointment - Pursuant to Government Code section 54957
Title: Interim City Attorney
RECOMMENDATION:
Approve Resolution No. 2024-200, Authorizing the City Manager to sign Engagement Letter for legal services with the law firm of Slovak Baron Empey Murphy Pinkney LLP.
BACKGROUND:
Resolution to approve contract must be presented to City Council in open session and as a Special Session requires a minimum 24-hour notice period. The decision to bring to open session for consideration can be made in Closed Session for consideration in Open Session following the meeting.
JUSTIFICATION:
Pursuant to Government Code section 54957.
FISCAL IMPACT:
Unknown
ALTERNATIVES:
Provide alternative direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution_2024-200__Approve_Agreement_for_Legal_Services.docx
2. 2024.12.19 Engagement Letter.pdf
3 Resolution 2024-200
RESOLUTION 2024-200
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING A LEGAL SERVICES CONTRACT WITH THE LAW FIRM OF SLOVAK BARON
EMPEY MURPHY & PINKNEY LLP
WHEREAS, Slovak Baron Empey Murphy & Pinkney LLP submitted an Engagement Letter dated December 20, 2024; and
WHEREAS, the City of Banning is in need of legal services; and WHEREAS, on December 20, 2024, the City Council interviewed the Law Firm of Slovak Baron Empey Murphy & Pinkney LLP; and,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves an interim agreement with Slovak Baron Empey Murphy & Pinkney LLP and authorizes the City Manager to sign said agreement.
SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 20th day of January 2024.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
4 Resolution 2024-200
APPROVED AS TO FORM AND
LEGAL CONTENT:
Serita R. Young, City Attorney
Richards, Watson & Gershon
5 Resolution 2024-200
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-200, was duly adopted by the City Council of the City of Banning, California, at a special meeting thereof held on the 20th day of December 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
6 Resolution 2024-200
EXHIBIT A
Engagement Letter
7 SLOVAK BARON EMPEY MURPHY & PINKNEY LLP
Palm Springs, CA Indian Wells, CA Costa Mesa, CA San Diego, CA Princeton, NJ New York, NY www.sbemp.com
JOHN O. PINKNEY, ESQ. PARTNER
ADMITTED IN CA
REPLY TO:
74-774 Highway 111
Indian Wells, California 92210
T (760) 322-2275
[email protected]
December 20, 2024
VIA ELECTRONIC MAIL ONLY
([email protected])
City of Banning
Attn: Mayor Sheri Flynn
99 E. Ramsey Street
Banning, CA 92220
RE: ENGAGEMENT LETTER: CITY OF BANNING
Dear Mayor Flynn:
On behalf of Slovak Baron Empey Murphy & Pinkney LLP (“Attorneys” or “SBEMP”), I want to thank you for the opportunity to represent the City of Banning and the City’s related entities (such as a utility authority) as the City Attorney. The City and its related entities are collectively referred to herein as “City”. This letter contains the terms under which our firm, upon execution of this Agreement, will be retained to represent the City. The terms of this letter will also govern any additional work which we may undertake on the City’s behalf unless we enter into a separate written engagement specifying other terms.
1. Conditions
This Agreement will not take effect, and SBEMP will have no obligation to provide legal services, until the City returns an initialed and signed copy of this Agreement.
2. Identity of Client
In the matters SBEMP handles for the City, the City, as defined above, will be SBEMP’s client, and not any other persons, entities or affiliates. SBEMP does not by this Agreement become or take on the role as legal counsel in any capacity for the City’s member agencies or the individuals serving on the City’s council or committees.
3. Scope of Representation
SBEMP shall represent the City as requested in connection with all of the City’s legal matters, including but not limited to, litigation, labor and employment, land use, contracting/real estate, land use, Council meetings, CEQA/environmental, utility related issues, law enforcement related issues, and other matters as requested by the City.
To assist SBEMP in performing the legal services required under this Agreement, it is important that the City: 1) keep SBEMP advised of the names and contact information of any other persons authorized to represent the City; 2) respond promptly and truthfully to questions or requests for information, provide complete and accurate information in response to discovery 8 Mayor Sheri Flynn
December 20, 2024
Page | 2
requests and other inquiries; 3) appear upon reasonable notice at any depositions, court hearings, or other required appearances; and 4) remain current on the City’s account.
4. Fees
The City agrees to pay by the hour for all time spent on the City’s matter by SBEMP’s legal personnel. Current hourly rates for legal personnel are as follows:
Attorneys: $295 for attorney time on non-litigation matters and $340 for litigation related matters.
Paralegals, Law Clerks and Other Firm Personnel: $150
The time charged will include the time SBEMP spends on telephone calls relating to the City’s matter, including calls with the City, witnesses, opposing counsel or court personnel; as well as time spent reviewing and responding to email communications. SBEMP’s legal personnel assigned to the matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting, court hearing or other proceeding, each will charge for the time spent.
Time is billed in increments of one-tenth (6 minutes) of an hour. Legal personnel will bill for waiting time in court or at other proceedings and for travel time both locally and out-of-town.
The above hourly rates will be increased by three percent (3%) on July 1st of each year.
5. Costs and Other Charges
(a) In General: SBEMP does not advance costs for clients. However, some routine costs such as photocopying, service of process fees, jury fees, notary fees, postage and express delivery, are incurred and paid for in advance on behalf of our clients. Except as listed below, all costs listed below will be charged at SBEMP’s cost:
In-office photocopying: $.15/page
Color photocopies (in-house): $2.00/page
Facsimile transmission: $1.00/page
Mileage: current IRS rate as amended
Unless an emergency occurs, or the costs are small, we do not advance costs for clients of the firm. Failure to provide advance notice of such costs does not relieve your obligation to pay for them. Reimbursement for costs advanced by us on your behalf and other expenses will be billed in addition to the hourly rate charged.
(b) Out of town travel: The City agrees to pay reasonable cost for transportation, meals, lodging and all other costs of any necessary out-of-town travel by SBEMP. The City will also be charged the hourly rates for the time legal personnel spend traveling. (c) Experts, Consultants and Investigations: It is the City’s responsibility to pay for the costs of any experts, consultants, or investigators hired to assist SBEMP in its representation of the City. City will be solely responsible for paying the fees and costs of such experts, consultants or investigators.
9 Mayor Sheri Flynn
December 20, 2024
Page | 3
6. Retainer
A retainer is being waived at this time.
7. Billing
SBEMP billing procedures are intended to be as simple and as clear as possible. You will be billed monthly for services rendered and for costs and expenses incurred. All payments owed are due and payable within ten (10) days of presentation unless we have made other arrangements with you. If a bill is not paid within thirty (30) days, a late charge of one-half percent (.5%) per month on the unpaid balance may be added to the amount past due, commencing with the next statement and continuing until paid.
If the City’s account becomes more than 45-days delinquent, we reserve the right to cease all non-emergency legal work. If the City’s account becomes more than 60 days delinquent, we reserve the right to withdraw from representing the City.
Angie Arcilla is our firm’s administrative assistant and will answer any questions you may have regarding billing. She may be reached at [email protected]. Our office sends all invoices via email. We will send your monthly invoice via email to the email address listed on the first page, unless specified otherwise.
In the event SBEMP is asked to estimate the anticipated cost of litigation, or any portion thereof, the City agrees and acknowledges that any such prediction, estimate, or budget is inherently difficult to accurately calculate, and is susceptible to a wide variety of future events and factors impacting the cost, including, but not limited to, the actions of the opposing party and counsel, and other factors beyond SBEMP’s control. Any estimates, predictions or budgets shall not be binding on SBEMP and shall not in any manner act as a limitation on the amount of fees owed nor as a basis for disputing amounts the City owes to SBEMP for work actually performed. _______________
(CITY’s initials)
You may always contact me if you have any questions regarding your bill.
8. Disclaimer of Guarantee and Estimates
Nothing in this Agreement and nothing in SBEMP’s statements to the City will be construed as or intended to be a promise or guarantee about the outcome of the matter. We have made no promises or guarantees about the outcome of any phase of this matter. Any comments we may make regarding the outcome of your matter are expressions of opinion only based on the facts and circumstances known at the time the comment is made.
Additionally, from time-to-time we may provide estimates of costs and fees or a budget for the estimated cost of the matter through trial. Those are estimates only. Actual fees may vary from estimates for a variety of reasons many of which are beyond our control. The estimates are not a guarantee nor are they a limitation of the fees and costs the City is obligated to pay. 10 Mayor Sheri Flynn
December 20, 2024
Page | 4
9. Insurance Coverage
SBEMP will not provide advice on the type or amount of insurance recommendable to the City. Moreover, to the extent the City is ever named as a defendant in a lawsuit, the City will notify its insurance carrier and broker of the claim to determine whether insurance coverage is available.
SBEMP carries its own errors and omissions insurance. After a standard deductible, this insurance provides coverage in the amount of $3 million.
10. Termination
This Agreement may be terminated by the City upon twenty-four (24) hours written notice.
SBEMP may also terminate its services upon twenty-four (24) hours written notice.
11. Independent Contractor
SBEMP shall perform all legal services required under this Agreement as an independent contractor of the City, and shall remain, at all times as to the City, a wholly independent contractor with only such obligations as are required under this Agreement.
Neither the City, nor any of its employees, shall have any control over the manner, mode, or means by which SBEMP, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. The City shall have no voice in the selection, discharge, supervision or control of SBEMP employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service.
12. Non-Discrimination
In connection with the execution of this Agreement, SBEMP shall not discriminate against any employee or applicant for employment because of race, religion, marital status, color, sex, handicap, sexual persuasion, or national origin. SBEMP shall take affirmative action to ensure that applicants are employed, and that employees are treated fairly during their employment, without regard to their race, religion, color, sex, marital status, handicap, sexual persuasion, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, demotion, transfer, duties assignment; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
13. Interpretation of Agreement and Forum
This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. In the event of any dispute hereunder, venue shall be with the Superior Court, Riverside County. 11 Mayor Sheri Flynn
December 20, 2024
Page | 5
14. Conclusion of Services
All unpaid charges shall become immediately due and payable when SBEMP’s services conclude. Upon conclusion and the City's request, SBEMP shall deliver the City's file to the City, along with any the City funds or property in our possession. In the event there are multiple City contacts, the City shall determine who is the primary contact for purposes of receiving the original City file.
15. Corporate Authority
The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that in so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement.
16. Dispute Resolution
The parties agree to cooperate and use all reasonable efforts to undertake the terms of this Agreement and, in good faith, to undertake the resolution of all disputes thereunder. Prior to submitting a dispute to final and binding arbitration as provided below, any party claiming a dispute must give ninety (90) days’ written notice to the non-disputing party of the occurrence of the dispute, along with a detailed explanation of the nature of the dispute. The parties agree that upon receipt of the notice of dispute, the parties will, in good faith, meet and confer to resolve the dispute, and if unsuccessful, submit the matter to mediation. If the matter is not resolved within ninety (90) days, the disputing party is entitled to pursue arbitration hereunder.
17. Arbitration
IN THE EVENT ANY DISPUTE IS NOT RESOLVED PURSUANT TO THE DISPUTE
RESOLUTION PROVISION ABOVE OVER THE AMOUNTS DUE, ANY COLLECTION ACTION
BY US, OR ANY OTHER DISPUTE OF ANY KIND WHATSOEVER BETWEEN US, INCLUDING
WITHOUT LIMITATION, DISSATISFACTION WITH THE SERVICES PROVIDED TO YOU OR
YOUR BELIEF THAT THE FIRM HAS ENGAGED IN MALPRACTICE, THE PARTIES HEREBY AGREE TO SUBMIT ANY AND ALL DISPUTES TO FINAL AND BINDING ARBITRATION. THE
ARBITRATOR ALSO SHALL HAVE THE EXCLUSIVE AUTHORITY TO RESOLVE ANY
DISPUTE RELATING TO WHAT ISSUES HEREUNDER ARE ARBITRABLE INASMUCH AS
THE INTENT OF THIS AGREEMENT IS TO INVEST IN THE ARBITRATOR SUCH EXCLUSIVE
AUTHORITY TO INCLUDE ANY ISSUES AS TO THE ENFORCEABILITY OF THIS
AGREEMENT AND/OR ANY CLAIM THAT ALL OR PART OF THIS AGREEMENT IS OR IS NOT ENFORCEABLE, VOID, AND/OR VOIDABLE. IT IS AGREED THAT THE ARBITRATOR SHALL BE REQUIRED TO FOLLOW THE LAW.
THE PARTIES AGREE THAT THE ARBITRATOR SHALL BE SELECTED THROUGH
JAMS IN ONTARIO, CALIFORNIA, WITH VENUE TO OCCUR IN PALM SPRINGS, CALIFORNIA, UNLESS OTHERWISE AGREED UPON IN WRITING BY ALL PARTIES. THE
PARTIES AGREE THAT JAMS SHALL SUBMIT A PANEL OF FIVE ARBITRATORS WITH THE
PARTY DEMANDING ARBITRATION REQUIRED TO STRIKE A NAME FIRST AND
THEREAFTER THE OTHER PARTY TO STRIKE A NAME UNTIL SUCH TIME AS ONE NAME 12 Mayor Sheri Flynn
December 20, 2024
Page | 6
REMAINS WHO SHALL BE THE ARBITRATOR, UNLESS THE PARTIES STIPULATE IN UNITY TO AN ARBITRATOR.
THE PARTIES AGREE TO WAIVE DISCOVERY RIGHTS AND PROCEED TO
ARBITRATION AS EXPEDITIOUSLY AS POSSIBLE WITH THE ARBITRATION TO BE SCHEDULED NOT LATER THAN NINETY (90) DAYS AFTER THE PARTY FIRST REQUESTING SAME TO HAVE MADE WRITTEN DEMAND. THE PARTIES AGREE TO EACH
PAY ONE-HALF OF THE ARBITRATOR'S FEES NECESSARY TO PROCEED WITH AND HOLD THE ARBITRATION. EACH SIDE SHALL BEAR THEIR OWN COSTS AND FEES IN
CONNECTION WITH THE ARBITRATION, REGARDLESS OF WHO IS CONSIDERED TO BE THE PREVAILING PARTY.
YOU ACKNOWLEDGE THAT IT HAS BEEN EXPLAINED TO YOU THAT SUCH
BINDING ARBITRATION MAY DEPRIVE YOU OF VARIOUS RIGHTS THAT YOU OTHERWISE
MIGHT HAVE IN A LEGAL ACTION, INCLUDING WITHOUT LIMITATION THE RIGHT TO A
JURY TRIAL, THE RIGHT TO APPEAL, THE RIGHT TO PUNITIVE DAMAGES, AND FULL DISCOVERY RIGHTS. IF YOU DO NOT UNDERSTAND THIS CLAUSE, YOU SHOULD SEEK INDEPENDENT LEGAL COUNSEL.
____ ____
(City’s initials) (SBEMP’s initials)
18. Document Storage Policies
SBEMP’s policy with regard to documents at the conclusion of a matter is to maintain only electronically stored documents for a period of five (5) years. SBEMP does not retain hard copies of files/documents. At the conclusion of five years, without any further notice, all documents in an electronic file may be destroyed and deleted. Accordingly, if there are any electronic documents you wish removed from your file at the conclusion of a matter, it will be necessary for you to advise us of that request to ensure that the documents are not destroyed.
19. Severability
If any part of this Agreement is said to be unlawful or not effective, the remainder of this Agreement shall remain in full force and effect.
20. Entire Agreement
This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.
21. Additional Matters
The parties agree that this engagement agreement shall be applicable and shall bind the parties respecting any additional matters undertaken by SBEMP for the City in the future so that separately executed agreements shall be unnecessary.
13 Mayor Sheri Flynn
December 20, 2024
Page | 7
22. Indemnification
The City acknowledges SBEMP is serving as the City Attorney pursuant to the authority of Government Code Section 36505 and has the authority of that office. Accordingly, City is responsible pursuant to Government Code Section 825 for providing a defense and indemnity for the City Attorney for actions within the scope of its engagement hereunder. Therefore, the City agrees to undertake its statutory duty and defend and indemnify SBEMP, its officers, employees and agents against and will hold and save each of them harmless from, any and all claims or liabilities that may be asserted or claims by any person, firm or entity arising out of or in connection with the work, operations or activities of SBEMP within the course and scope of its performance hereunder, but nothing herein shall require the City to indemnify SBEMP for liability arising from its own negligence or alleged negligence.
23. Notices
Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified, or by delivery of same into the custody of the United States Postal Service, or its lawful successor; postage prepaid and addressed as follows:
City: City of Banning
99 E. Ramsey Street
Banning, CA 92220
Attn: Mayor
SBEMP: Slovak Baron Empey Murphy & Pinkney LLP
74774 Highway 111
Indian Wells, CA 92210
Attn: John O. Pinkney, Esq.
Service of a notice by personal service shall be deemed to have been given as of the date of such personal service. Notice given by deposit with the United States Postal Service shall be deemed to have been given two (2) consecutive business days following the deposit of the same in the custody of said Postal Service. Either party hereto may, from time to time, by written notice to the other, designate a different address or person which shall be substituted for that specified above.
If this Agreement meets with your approval, please sign and return a copy to me.
Sincerely,
SLOVAK, BARON, EMPEY, MURPHY & PINKNEY LLP
By: John O. Pinkney
14 Mayor Sheri Flynn
December 20, 2024
Page | 8
Agreed:
CITY OF BANNING
By:
Name: Sheri Flynn
Its: Mayor
15