HomeMy WebLinkAbout11-City Attorney
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C. ROTH
Senior Assistant 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 Wagner
& Pelayes, LLP and the City of San Bernardino for
Legal Services in the Case of Donnavan Parker v. City
of San Bernardino.
Dept: CITY ATTORNEY
Date: June 20, 2011
Synopsis of Previous Council Action:
None
Recommended motion:
Adopt Resolution
,
1:~~~ ~~
S~ature
Contact person: Steohen R. On stat
Phone:
5355
Supporting data attached: Staff Reoort
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda ItemNo.~
~/2.0//J
STAFF REPORT
Council Meeting Date: June 20, 2011
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
Diane C. Roth, Senior Assistant City Attorney
June 8, 2011
Resolution of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between
Wagner & Pelayes, LLP and the City of San Bernardino for Legal Services in the
Case of Donnavan Parker v. City of San Bernardino, San Bernardino Superior
Court, Case No. CIVDS 1013471
On June 6, 2011, the Mayor and Common Council approved the retention of the law firm of
Wagner & Pelayes to represent the City of San Bernardino, and all named officers and employees
in the case entitled Donnavan Parkerv. City of San Bernardino, San Bernardino Superior Court, Case
No. CIVDS 1013471.
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of $25,000 on attorneys fees and a requirement of regular status reports.
It is requested by the City Attorney that the proposed resolution be adopted, authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution
F:\ONSTOT\CIVlL CASES\Parker\PSA StaffRpt.wpd
1 RESOLUTION NO.
2 RESOLUTION OF THE MA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN WAGNER & PELAYES, LLP AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE CASE OF DONNA VAN PARKER v. CITY
4 OF SAN BERNARDINO, SAN BERNARDINO SUPERIOR COURT, CASE NO. CIVDS
1013471
5
6 BE IT RESOLVED BY THE MA YOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
7
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 Wagner & Pelayes, LLP
10 and the City of San Bernardino for legal services in the case of Donnavan Parker v. City of San
11 Bernardino, San Bernardino Superior Court, Case No. CIVDS 1013471 a copy of which is attached
12 hereto and incorporated herein as Exhibit "A."
13 SECTION 2. The authorization granted by this Resolution shall expire and be void and
14 of no further effect if the agreement is not executed by both parties and returned to the Office of the
15 City Clerk within sixty (60) days following the effective date of this Resolution.
16 /II
17 /II
18 /II
19 /II
20 /II
21 /II
22 /II
23 /II
24 /II
25 /II
26 /II
27 /II
28 1/1
F:\ONSTOT\CIVIL CASES\Parker\PSA RESO.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN WAGNER & PELAYES, LLP AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE CASE OF DONNA VAN PARKER V. CITY
3 OF SAN BERNARDINO, SAN BERNARDINO SUPERIOR COURT, CASE NO. CIVDS
1013471
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 _day
7
of
, 20 II, by the following vote, to wit:
8
COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
9
10
MARQUEZ
VACANT
BRINKER
SHORETT
KELLEY
JOHNSON
MC CAMMACK
11
12
13
14
15
16
17
Rachel Clark, City Clerk
18
19
The foregoing Resolution is hereby approved this _ day of
,2011.
20
21
22
PATRICKJ. MORRIS, Mayor
City of San Bernardino
23
Approved as to form:
24
25
JAMES F. PENMAN,
::: Z" 7tJ~
.y
26
27
28
F:\ONST01\CIVIL CASES\Parker\PSA RESO.wpd
27
28
1
PROFESSIONAL SERVICES AGREEMENT
2
Donnavan Parker v. City of San Bernardino
San Bernardino Superior Court, Case No. CIVDS 1013471
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
3
4
5
6
WAGNER & PELA YES, LLP (hereinafter "w &P") are the parties to this Agreement.
7
2. W &P will represent the following defendants in Donnavan Parker v. City of San
Bernardino, San Bernardino Superior Court, Case No. CIVDS 1013471: CITY OF SAN
8
BERNARDINO and any other designated officer or employee of the CITY who may later be named.
9
W &P shall not represent any client in any type of claim against the CITY without prior written
10
approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
3. W &P shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/Paralegals - $70.00 per hour.
11
12
13
14
The amounts expended under this agreement for attorney fees shall not exceed
15
16
17
$25,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
each succeeding month.
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19
20
W &P may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
lieu of reimbursement for photocopying, telephone charges, and postage.
21
22
6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
then W &P shall not be entitled to reimbursement for mileage and parking fees.
7. W&P shall obtain approval from the CITY to retain expert witnesses, consultants,
23
24
25
and other professionals (not including court reporters) for purposes of the litigation. W&P may, if
it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
26
its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
F\ONSTOT\CIVIL CASES\Parker\PSA. wpd
1
Exhibit "A"
CITY'S Finance Department.
2 8. Status reports will be submitted to the CITY through the City Attorney's Office
3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
4 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
5 be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
6 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
7 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
8 or other litigation.
9 10. Copies of any correspondence and other documents sent to any of the parties in this
10 action shall also be provided to the CITY through the City Attorney's Office.
I I I I. Any and all settlements shall require CITY approval. Request for settlement authority
12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
I3 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
14 Attorney's Office shall be notified immediately.
15 13. Only Dennis Wagner of Wagner & Pelayes, LLP or another senior attorney approved
16 by the City shall conduct the trial of this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
2 I 17. Either party may terminate this Agreement at will. W &P will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. W&P is an independent contractor as to the CITY.
25 19. W&P shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of California,
27 including Employment Liability with $250,000 limits covering all persons providing
28 service on behalfofW&P and all risks to such persons under this Agreement. W&P
FIONSTOTICIVIL CASESIParkerlPSAwpd
2
1
shall require its Workers Compensation carrier to waive all rights of subrogation
2
against the CITY and its officers and employees and any others for whom services
3
are being provided under this Agreement.
4
b)
Comprehensive General and Automobile Liability Insurance coverage to
5
include contractual coverage and automobile coverage for owned, hired and non-
6
owned vehicles. The policy shall have at least a combined single limit of $1 ,000,000
7
for bodily injury and property damage.
8
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
9
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
10
follows:
11
12
"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."
13
14
15
16
17
W &P 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
18
19
20
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 W &P commences performance
of services hereunder until the completion of such services.
21
All policies, with respect to the insurance coverage above required, except for the
22
23
24
25
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 insureds with respect to
liabilities arising out of the performance of services hereunder.
26
All policies required above are to be primary and non-contributing with any insurance
27
policies or self-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
28
F:\ONSTOT\CIVIL CASES\Parker\PSA. wpd
3
1 20.
2
3
4
5 Dated:
6
7
8
9
10 Dated:
11
12
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
,2011
WAGNER & PELA YES, LLP
By: Dennis Wagner
,2011
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
13
14
15
16 Approved as to form:
17
JAMES F. PENMAN,
18 City Attorney
19
By:
20
21
22
23
24
25
26
27
28
F:\ONSTOT\CIVIL CASES\Parker\PSA. wpd 4
1
PROFESSIONAL SERVICES AGREEMENT
2
Donnavan Parker v. City of San Bernardino
San Bernardino Superior Court, Case No. CIVDS 1013471
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
3
4
5
6
WAGNER & PELA YES, LLP (hereinafter "W &P") are the parties to this Agreement.
2. W &P will represent the following defendants in Donnavan Parker v. City of San
Bernardino, San Bernardino Superior Court, Case No. CIVDS 1013471: CITY OF SAN
7
8
BERNARDINO and any other designated officer or employee of the CITY who may later be named.
W &P shall not represent any client in any type of claim against the CITY without prior written
9
10
approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
3. W &P shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law ClerkslParalegals - $70.00 per hour.
11
12
13
14
The amounts expended under this agreement for attorney fees shall not exceed
15
$25,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
16
each succeeding month.
17
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19
20
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
W &P may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
21
lieu of reimbursement for photocopying, telephone charges, and postage.
22
6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
then W &P shall not be entitled to reimbursement for mileage and parking fees.
23
24
7. W&P shall obtain approval from the CITY to retain expert witnesses, consultants,
25
and other professionals (not including court reporters) for purposes of the litigation. W &P may, if
26
it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
27
its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
28
CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
F:\ONSTOT\CIVIL CASES\Parker\PSA.wpd
1
CITY'S Finance Department.
2 8. Status reports will be submitted to the CITY through the City Attorney's Office
3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
4 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
5 be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
6 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
7 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
8 or other litigation.
9 10. Copies of any correspondence and other documents sent to any of the parties in this
10 action shall also be provided to the CITY through the City Attorney's Office.
II II. Any and all settlements shall require CITY approval. Request for settlement authority
12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
13 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
14 Attorney's Office shall be notified immediately.
15 13. Only Dennis Wagner of Wagner & Pelayes, LLP or another senior attorney approved
16 by the City shall conduct the trial of this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
21 17. Either party may terminate this Agreement at will. W&P will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. W &P is an independent contractor as to the CITY.
25 19. W&P shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of California,
27 including Employment Liability with $250,000 limits covering all persons providing
28 service on behalfofW&P and all risks to such persons under this Agreement. W&P
FIONSTOTlCIVIL CASESIParkerlPSA wpd
2
1
shall require its Workers Compensation carrier to waive all rights of subrogation
2
against the CITY and its officers and employees and any others for whom services
3
4
are being provided under this Agreement.
b)
Comprehensive General and Automobile Liability Insurance coverage to
5
6
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
7
for bodily injury and property damage.
8
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
9
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
10
follows:
II
"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."
12
13
14
15
W &P 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
16
to the commencement of performance of services hereunder, which certificates shall provide that
17
such insurance shall not be terminated or expire without thirty (30) days written notice to the City
18
Attorney's Office, and shall maintain such insurance from the time W &P commences performance
19
20
of services hereunder until the completion of such services.
All policies, with respect to the insurance coverage above required, except for the
21
22
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23
their employees, agents, volunteers and officers as additional named insureds with respect to
24
liabilities arising out of the performance of services hereunder.
25
All policies required above are to be primary and non-contributing with any insurance
26
policies or self-insurance programs carried or administered by the CITY or other parties represented
27
under this Agreement.
28
F:\ONSTOT\CIVIL CASES\Parker\PSA. wpd
3
1 20.
2
3
4
5 Dated:
6
7
8
9
10 Dated:
11
12
13
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
,2011
WAGNER & PELA YES, LLP
By: Dennis Wagner
,2011
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
16 Approved as to form:
17
JAMES F. PENMAN,
City Au::ttorney y://~
19/1 / . L,#- /
By: . i.d'~~ fu .
./
18
20
21
22
23
24
25
26
27
28
F:\ONSTOnCIVlL CASES\Parker\PSA. wpd
4