HomeMy WebLinkAbout08-City Attorney
e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Resolution ofthe Mayor and Common Council
of the City of San Bernardino authorizing the execution
of a Professional Services Agreement between the law
firm of Arias & Lockwood and the City of San
Bernardino in Matter of Marc Stephen Maxey, et al.
Dept: CITY ATTORNEY
Date: April 19, 2007
Synopsis of Previous Council Action:
04/19/07:
Mayor and Council approved the hiring of Arias & Lockwood to represent the City of San
Bernardino in the subject matter.
Recommended motion:
That said resolution be adopted.
e
tF
?~
.
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Reoort
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item NO.J
e
'1j/fp/tJ7
e
e
e
STAFF REPORT
Council Meeting Date: ADril19. 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: April 19, 2007
AGENDA ITEM: Resolution of the Mayor and Common Council of the City of San
Bernardino Authorizing the Execution of a Professional Services
Agreement between the law firm of Arias & Lockwood and the City of
San Bernardino in Matter of Marc Stephen Maxey, et at.
On Aprill9, 2007, the Mayor and Common Council approved the hiring of the law firm of Arias
& Lockwood to represent the City in the subject matter. Attached hereto is the Professional Services
Agreement which reflects such approval, including a ceiling of $25,000 on attorneys fees and the
requirement of regular status reports.
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.
That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf
of the City of San Bernardino the Professional Services Agreement with the law firm of Arias &
Lockwood to represent the City in Matter of Man;: Stephen Maxey, et al.
e 1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN THE LAW FIRM OF ARIAS & LOCKWOOD AND THE CITY
OF SAN BERNARDINO IN MATTER OF MARC STEPHEN MAXEY, et at.
4
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor ofthe City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between the law firm of Arias
9 & Lockwood and the City of San Bernardino for legal services, a copy of which is attached hereto
10 as Exhibit "A" and incorporated herein by this reference as though set forth in full hereat.
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 the City
13 Clerk within sixty (60) days following the effective date of the Resolution.
e 14 /1/
/1/
15
16 /1/
17 /1/
18 /1/
19 //1
20 //1
21 /1/
22 /1/
23 //1
24 /1/
25 /1/
26 //1
e 27 //1
28
I
8 COUNCIL MEMBERS: . AYES NAYS
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
e 14 JOHNSON
MC CAMMACK
15
16
17
e
18
19
20
21
22
23
24
.25
26
e 27
28
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN THE LAW FIRM OF ARIAS & LOCKWOOD AND THE CITY
OF SAN BERNARDINO IN MATTER OF MARC STEPHEN MAXEY, et aL
3
4
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 thereof, held on the _
7 day of
,2007, by the following vote, to wit:
ABSTAIN ABSENT
Rachel Clark, City Clerk
The foregoing Resolution is hereby approved this _ day of
,2007.
PATRICK J. MORRIS, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
-t- i. fe-..".
2
e
e
e
1 PROFESSIONAL SERVICES AGREEMENT
2 Matter of Marc Stephen Maxey, et aL
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
6 2. A&L will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO, and any designated employee of the CITY. A&L shall not represent any
8 client in any type of claim against the CITY without prior written approval to do so from the CITY
9 OF SAN BERNARDINO through the City Attorney's Office. Representation shall include
10 responding to a Public Records Act request and any litigation arising from the above-referenced
11 claim.
12 3. A&L shall be paid at the hourly rates set forth below:
13 Attorneys - $135.00 per hour; and,
14 Law Clerks/Paralega1s - $60.00 per hour.
15 The amounts expended under this agreement for attorneys fees shall not exceed
16 $25,000 without further approval of the Mayor and Common Council.
17 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
18 each succeeding month.
19 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
21 A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of
22 reimbursement for photocopying, telephone charges, and postage.
23 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and return),
24 then A&L shall not be entitled to reimbursement for mileage and parking fees.
25 7. A&L shall obtain approval from the CITY to retain expert consultants and other
26 professionals (not including court reporters) for purposes of defending the litigation. A&L may, if
27 it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
28
F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607. wpd 1
e 1
2
3
4
5
6
7
8
9
10
11
12
13
e
e
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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 ofthe 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 to set
reserves, including, without limitation, potential liability exposure and percentage of fault shall be
included. Since the City Attorney's office has declared a conflict as to the representation in this
matter, reports shall be made to the Mayor and Common Council in closed session. Upon request,
the City Attorney's office will place the matter on the agenda for the Mayor and Common Council.
9. Any and all settlements shall require CITY approval. Request for settlement authority
shall be made through the City Attorney's Office which place the matter on the agenda for the Mayor
and Common Council.
10. In the event the settlement value of this case appears to exceed $50,000.00 the City's
Risk Manager shall be notified immediately.
II. Only Joseph Arias of A&L or other senior attorney approved by the City shall try this
case.
12. No client development costs are to be included in billings.
13. No continuing education expenses are to be included in billings.
14. Final billing shall be accompanied by copies of the Request for Dismissal,
Satisfaction of Judgment, Release and any other final documents.
15. Either party may terminate this contract at will. A&L will continue to represent the
CITY on the terms and conditions in this Agreement until the case and file are transferred to another
attorney.
16. A&L is an independent contractor as to the CITY.
17. A&L shall maintain the following types of insurance with limits as shown:
a) Workers Compensation as required by the laws of the State of California,
including Employment Liabilitywith $250,000 limits covering all persons providing
F:\SlMMONS\Maxey\CQITespondence\Agreement.A&L 032607. wpd 2
e
e
e
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
service on behalf of A&L and all risks to such persons under this Agreement. A&L
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.
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.
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 defense services, provided
such liability results from an error, omission or
negligent act of the insured, its officers, employees,
agents,orsubcontractors. All other provisions of this
policy are to remain unchanged.
A&L 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
b)
c)
to the commenceinent 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 A&L 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 Agreemeni,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
III
F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607. wpd 3
e
I All policies required above are to be primary and non-contributing with any insurance or
2 self-insurance programs carried or administered by the CITY or other parties represented under this
3 Agreement.
4
All communications and billings to the CITY are to be directed as follows:
20.
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: ,2007 ARIAS & LOCKWOOD
9
10
By: Joseph Arias
11
12
13 Dated: ,2007 CITY OF SAN BERNARDINO
14
e 15
By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
20
e
21
22
23
24
25
26
27
28
JAMES F. PENMAN,
City Attorney
"{f- d~
F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607.wpd 4