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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Resolution authorizing a Professional Services
Agreement between the City of San Bernardino and the
law firm of Reid & Hellyer to represent the City of San
Bernardino in the case of In Re: Bankruptcy of
Adelphia Communications Corporation, Southern
District of New York, Case No. 02-41729.
From: JAMES F. PENMAN
City Attorney
Date: September 6, 2005
Synopsis of Previous Council Action:
September 6,2005, approval of the hiring of Reid & Hellyer to represent the City of San Bernardino.
Recommended motion:
Adopt Resolution:
That the Mayor of the City of San Bernardino and Common Council
authorize and direct the Mayor of the City of San Bernardino to execute on
behalf of the City of San Bernardino the Professional Services Agreement
with the law firm of Reid & Hellyer to represent the City of San Bernardino
regarding the case In Re: Bankruptcy of Adelphia Communications
Corporation, Southern District of New York, Case No. 02-41729.
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Contact person: Michael Reiter
Phone:
5355
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Counc~. o!e~. "J CO oC) .
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Agenda Item No. / 3
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STAFF REPORT
Council Meeting Date: September 6. 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: August 24, 2005
AGENDA ITEM: Resolution authorizing and directing the Mayor to execute a Professional
Services Agreement between the City of San Bernardino and the law firm of Reid
& Hellyer to represent the City of San Bernardino in the case of In Re:
Bankruptcy of Adelphia Commnnications Corporation, Southern District of
New York, Case No. 02-41729.
The City of San Bernardino has filed bankruptcy claims against Adelphia Communications
Corporation including a claim for $307,319 in unpaid taxes and fees with penalties and interest.
The Adelphia bankruptcy case is a large and extremely complex case, and bankruptcy law
is a highly-specialized area of the law with rules and procedures unique to bankruptcy law Mark
C Schnitzer of the firm Reid & Hellyer has been practicing bankruptcy law for over thirty years.
Attached hereto is the Professional Services Agreement which reflects such approval.
including a ceiling of $25,000 on attorney fees and the requirement ofregular status reports.
It is requested by the City Attorney that the following floor motion be adopted authorizing
the Mayor 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 and direct
the Mayor of the City of San Bernardino to execute on behalf of the City of San Bernardino the
Professional Services Agreement with the law firm of Reid & Hellyer to represent the City of San
Bernardino regarding the case In Re: Bankruptcy of Adelphia Communications Corporation,
Southern District of New York, Case No. 02-41729"
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE MAYOR OF THE CITY OF
3 SAN BERNARDINO TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT
BETWEEN REID & HELL YERAND THE CITY OF SAN BERNARDINO TO REPRESENT
4 THE CITY IN THE CASE OF IN RE: BANKRUPTCY OF ADELPHIA COMMUNICATIONS
CORPORA TION, UNITED STATES BANKRUPTCY COURT, SOUTHERN DISTRICT OF
5 NEW YORK, CASE NO. 02-41729,
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1 The Mayor of the City of San Bernardino is hereby authorized and directed
9 to execute on behalf of said City a Professional Services Agreement between Reid & Hellyer and
10 the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit
II "A" and incorporated herein by reference as fully as though set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
13 further effect if the agreement is not executed by both parties and returned to the office of City
14 Clerk within sixty (60) days following effective date of the resolution.
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I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE MAYOR OFTHE CITY OF
2 SAN BERNARDINO TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT
BETWEEN REID & HELL YERAND THE CITY OF SAN BERNARDINO TO REPRESENT
3 THE CITY IN THE CASE OF IN RE: BANKRUPTCY OF ADELPHIA COMMUNICA TIONS
CORPORA TION, UNITED STATES BANKRUPTCY COURT, SOUTHERN DISTRICT OF
4 NEW YORK, CASE NO. 02-41729
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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
, 2005, by the following vote, to wit:
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COUNCIL MEMBERS.
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MCCAMMACK
ABSTAIN ABSENT
AYES
NAYS
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CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2005
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JUDITH V ALLES, Mavor
City of San Bernardino'
24 Approved as to form and
legal content:
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i/' City 1,Viorney
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1
PROFESSIONAL SERVICES AGREEMENT
IN RE: BANKRUPTCY OF A DELPHIA COMMUNICA TlONS CORPORA TlON, United
States Bankruptcy Court, Southern District of New York, Case No. 02-41729
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The CITY OF SAN BERNARDiJ',O (hereinafter "CITY") and the law firm of
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REID & HELLYER (hereinafter "R&H") are the partIes to thIS Agreement.
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2. R&H will be representing the follOWing entitles and persons In this litigation.
CITY OF SAN BERNARDINO R&H shall not represent any client in any type of claim against
the CITY without pnor written approval to do so from the CITY OF SAN BERNARDINO through
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the City Attorney's Office.
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3 R&H shall be paid at the hourly rates set forth belo\\
Attorneys - $300.00 per hour; and.
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The amounts expended under this agreement for attorneys fees shall not exceed
$25,000 without further approval of the Mayor and Common Council.
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4 Bills shall be submIlled at least quarterly
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The actual cost for filing fees, telephone charges, photocopying, postage,lodgmg,
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mileage and related travel costs shall be itemized when submitted to the CITY for reImbursement.
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R&H may mclude a single charge in an amount not to exceed four percent (40~) of fees in lieu of
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reimbursement for photocopying, telephone charges, and postage.
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6 If attorney's fees are charged "portal to portal" (e.g., from office to court and
return), then R&H shall not be entitled to reimbursement for mileage and parking fees.
7 R&H shall obtain approval from the CITY to retam expert consultants and other
professionals (not including court reporters) for purposes of defendmg the litigation. R&H may,
ifit 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
whenever any significant event occurs, and m any event at least quarterly Information sufficient
\1R/tbm jreid hellyerps3.wpd]
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EXHIBIT "A"
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1 to set reserves,includmg, without limitation, potential liability exposure and percentage of fault
2 shall be included.
3 9 Copies of all opinions, pleadmgs. discovery and motIons shall be provided to the
4 CIty Atlomey's Office which may reproduce same and provide copies to other parties or attorneys
5 m this. or other lItigation.
6 10. Copies of any correspondence and other documents sent to any of the defendants
7 in this action shall also be provided to the CITY through Ihe City Attomey's Office.
8 II Any and all settlements shall require CITY approval. Request for settlement
9 authority shall be made through the City Attorney's Office which shall obtam the necessary CITY
10 approvals.
11 12. In the event the settlement value of the case appears to exceed 550,000, the City
12 Attomey's Office shall be notified immediately
13 13 Only \1ark C Schnitzer of R&H or other senior attomev approved by the CITY
14 shall try this case.
15 14 No client development costs are to be mcluded in billings.
16 15 No contmuing education expenses are to be mcluded In billmgs.
17 16 Final billIng shall be accompanied by copies of the Request for Dismissal,
18 Satisfaction of Judgment, Release and any other final documents.
19 17 Either party may ternllnate this contract at will. R&H 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 18 R&H IS an independent contractor as to the CITY
23 19 R&H shall maintaulthe following types of insurance with lImits as shown.
24 a) Workers Compensation as required by the laws of the State of
25 California, mcluding Employment Liability with $250,000 lImits covering all
26 persons providing service on behalf ofR&H and all risks to such persons under
27 this Agreement. R&H shall require its Workers Compensation camer to waive
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EXHIBIT "A"
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all rights of subrogatIOn against the CITY and its officers and employees and any
others for whom services are being provided under this Agreement.
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b)
Comprehensive General and Automobile LiabilIty Insurance
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coverage to II1clude contractual coverage and automobile coverage for owned,
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hIred and non-owned vehIcles. The policy shall have at least a combined smgle
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lImit of S 1 ,OUO,OOU for bodily Injury and property damage.
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c)
Professional Liability Insurance with lInlltS of at least S 1,000,000
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per claim. In lieu ofnammg the CITY as an additIOnal insured, thc policy may
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be 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
BERNARDNO for legal defense services, provided such lIability results from
an en-or, omIssion or negligent act ofthe insured, its officers, employees, agents
or subcontractors. All other provisions of this policy are to remain unchanged."
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R&H shall furnIsh certificates of insurancc and certificd copics of all policies and
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endorsements to the City Attorney's Office e\'ldencing the msurancc coverage above required prior
15 to the commencement of performance of services hereunder which certIficates shall prOVIde that
16 such II1surance shall not be terminatcd or expIre witholltthirty (30) days written notIce to the City
17 Attorney's Office, and shallmamtain such Insurance from the lIme R&.H commences performance
18 of servIces hereunder until the completIOn of such services.
19 All policies, with respect to the msurance coverage above requircd, except for the
20 Workers CompensatIOn insurance coverage and profeSSIonal lIability covcrage, ifapplicable, shall
21 obtain additional cndorscments nammg the CITY and all parties reprcsented under this Agreement,
22 theIr employees, agents, volunteers and officers as addItIOnal named msured with respect to
23 liabilities arising out of the performance of services hereunder
24 All polIcies required above are to be primary and non-contributing with any
25 IIlsurance or self-insurance programs carried or admmistered by the CITY or other parties
26 represented under this Agreement.
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EXHIBIT "A"
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All communications and billings to the CITY are to be directed as follows:
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DATED'
.1005
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DUED'
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20 Approved as to fom] and
legal content:
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JAMES F PENMAN,
22 City Attorne)
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City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
REID & HELLYER
BY' Mark C Schnitzer
CITY OF SAN BERNARDINO
BY' Judith Valles, Mayor
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EXHIBIT "A"
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PROFESSIONAL SERVICES AGREEMENT
IN RE: BANKRUPTCY OF ADELPHIA COMMUNICATIONS CORPORATION, United
States Bankruptcy Court, Southern District of New York, Case No, 02-41729
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I The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
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REID & HELLYER (hereinafter "R&H") are the parties to this Agreement.
2. R&H will be representing the following entities and persons in this litigation:
CITY OF SAN BERNARDINO R&H 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 R&H shall be paid at the hourly rates set forth below'
Attorneys - $300.00 per hour; and,
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The amounts expended under this agreement for attorneys fees shall not exceed
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$25,000 without further approval of the Mayor and Common Council.
4 Bills shall be submitted at least quarterly
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The actual cost for filmg fees, telephone charges, photocop)'lng, postage, lodging,
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mlleage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
R&H may include a single charge in an amount not to exceed four percent (4%) offees 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
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return), then R&H shall not be entitled to reimbursement for mileage and parking fees.
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7 R&H shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. R&H may,
22
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
whenever any significant event occurs, and in any event at least quarterly Information sufficient
MR/tbm [reid.hellyer.psa.wpd]
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to set reserves, including, without limitation, potential liability exposure and percentage of fault
shall be included.
9 Copies of all opinions, pleadings, discovery and motions shall be provided to the
City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
in this, or other litigation.
10 Copies of any correspondence and other documents sent to any of the defendants
in this action shall also be provided to the CITY through the City Attorney's Office.
II Any and all settlements shall require CITY approval. Request for settlement
authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
approvals.
12. In the event the settlement value of the case appears to exceed $50,000, the City
Attorney's Office shall be notified immediately
13 Only Mark C Schnitzer ofR&H or other senior attorney approved by the CITY
shall try this case.
14 No client development costs are to be mcluded in billings.
15 No continuing education expenses are to be included in billings.
16. Final billing shall be accompanied by copies of the Request for Dismissal,
Satisfaction of Judgment, Release and any other final documents.
17 Either party may terminate this contract at will. R&H will continue to represent
the CITY on the terms and conditions in this Agreement until the case and file are transferred to
another attorney
18. R&H is an independent contractor as to the CITY
19 R&H shall maintain the following types of insurance with limits as shown:
a) Workers Compensallon as required by the laws of the State of
California, including Employment Liability with $250,000 limits covering all
persons providing service on behalf ofR&H and all risks to such persons under
this Agreement. R&H shall require its Workers Cornpensallon camer to waive
MRithm [reid.hcl1yer.psa.wpd]
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all rights of subrogation against the CITY and its officers and employees and any
others for whom services are being provided under this Agreement.
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b)
Comprehensive General and Automobile Liability Insurance
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coverage to include contractual coverage and automobile coverage for owned,
5
hired and non-owned vehicles. The policy shall have at least a combined single
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limit of $1 ,000,000 for bodily injury and property damage.
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c)
Professional Liability Insurance with limits of at least $1 ,000,000
8
per claim. In lieu of naming the CITY as an additional insured, the policy may
be 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 defense 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."
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R&H shall furnish certificates of insurance and certified copies of all policies and
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endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
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to the commencement of performance of services hereunder, which certificates shall provide that
16 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
17 Attorney's Office, and shall maintain such insurance from the time R&H commences performance
18 of services hereunder until the completion of such services.
19 All policies, with respect to the insurance coverage above required, except for the
20 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
21 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
22 their employees, agents, volunteers and officers as additional named insured with respect to
23 liabilities arising out of the performance of services hereunder
24 All policies required above are to be primary and non-contributing with any
25 Insurance or self-insurance programs carried or administered by the CITY or other parties
2 6 represented under this Agreement.
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AIl 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
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DATED'
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DATED'
,2003
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2 0 Approved as to form and
legal content:
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JAMES F PENMAN,
22 City Attorney
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By: ~ #/~P:/
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MR/tbm [reid.he\\yer.psa.wpd]
REID & HELLYER
BY' Mark C. Schnitzer
CITY OF SAN BERNARDINO
By' Judith Valles, Mayor
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